Hon. Cecil Valentine Burgess
Chairperson:
Ad Hoc Committee on General Intelligence Laws Amendment Bill
Parliament
Cape Town
E-mail: <nmbuqe@parliament.gov.za>
	16 March 2012

Dear Hon. Burgess,

Written submission: General Intelligence Laws Amendment Bill  [B25-2011]

The Institute for Security Studies (ISS) Cape Town office is submitting this written submission on the General Intelligence Laws Amendment Bill  [B25-2011] in response for the call for public submissions.  Should it assist the committee we would be happy to discuss this submission as part of the scheduled programme for verbal submissions. Should it be useful the ISS can also assist with examples of international good practice (at the request of the committee).

We would like to draw the committee’s attention to the fact that should we have been afforded more time we would have been in a position to provide a much more detailed analysis (including examples of international good practice) of the proposed General Intelligence Laws Amendment Bill (hereafter referred to as GILAB). This is as a result of the confusion created by contradictory information provided to the Parliamentary Monitoring Group (PMG) and information that was allegedly provided on the Parliamentary website. Furthermore, as set out in our letter to the committee on 01 March 2012, this is a complex draft law, which requires detailed study. It was therefore unfortunate that the committee did not extend the deadline for public submissions. It is hoped that the committee will seek other avenues to ensure broad public consultation with civil society as part of the process of public deliberations.

In the process of preparing this submission, extensive reference has been made to the final report of the Ministerial Review Commission on Intelligence, titled Intelligence in a Constitutional Democracy and published in September 2008. The report is widely available in the public domain and is commonly known as the ‘Matthews Commission Report’.

Submission
General Intelligence Laws Amendment Bill  [B25-2011]

Attempts to reform the intelligence service in democratic South Africa should be universally welcomed and there are traces of such efforts in this draft law. 
However, a number of critical issues require further attention to strengthen the current draft in line with the Constitution. The primary concerns relate to the following: 

•	Ministerial Powers: The Bill does not adequately amend existing legislation to provide clarity on the role of the Minister with regard to Ministerial power and authority. 
•	The Right to Privacy: Certain intrusive methods of surveillance used by the intelligence services constitute an infringement of the right to privacy as guaranteed by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Constitution of the Republic of South Africa.
•	Budget, Financial and Audit Report Transparency: While the budget, financial and audit reports of the Intelligence Services are presented to the Joint Standing Committee on Intelligence (JSCI) it is not presented to Parliament. This contravenes the stipulations of the Constitution. 

The relationship between intelligence and democracy is one of a complex nature, which presents challenges for all democracies – including our own. As noted by ISS Researcher Ms. Lauren Hutton, “…it is important to consider meeting the democratic demands of openness and accountability while, at the same time, maintaining the secrecy deemed necessary if intelligence is to function effectively”.  The special powers conferred to security services in order to fulfill its mandate gives rise to the potential for abuse of these powers to infringe upon constitutionally guaranteed human rights or to undermine the integrity of the democratic process. 

While the vast efforts to reform the intelligence sector in a free South Africa (post-1994) are acknowledged, there is significant room for improvement. The GILAB provides South Africa with an opportunity to address weaknesses in the current intelligence legislation. The following issues (amongst a number that feature in submissions by other civil society groups) are worthy of consideration by the committee as part of its deliberations:

1.	Ministerial Powers

The Minister plays a critical role in ensuring the intelligence services comply with the Constitution and in preventing the abuse of power and resources. 

According to the South African Constitution, Sections 92(1), (2) and (3) b:
Ministers are responsible for the powers and functions of the executive assigned to them by the President.
Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. 
Members of Cabinet must provide Parliament with full and regular reports concerning matters under their control. 

As highlighted by the Matthews Commission Report, provisions in the National Strategic Intelligence Act (39/1994) regarding the supply of intelligence to the Minister, President and departments are unsatisfactory.  According to this legislation, intelligence structures (including NIA, SASS, SAPS and SANDF) provide national strategic intelligence information to NICOC, which advises Cabinet. The Minister is mandated to advise the President and National Executive on national strategic intelligence, yet previously there was no legal requirement that the intelligence structures must supply intelligence information directly to the Minister.  

We acknowledge the relevant amendments to Act 39/1994 contained in the GILAB which has begun to address this shortcoming by including a legal obligation for intelligence structures to supply intelligence to the Minister.  

We are however concerned that existing legislation does not require ministerial approval of intrusive methods that are undertaken by the intelligence services. The GILAB does not address this oversight.
 
The Matthews Commission report assists with this by recommending that ministerial approval should be required for the use of all forms of intrusive operations.  This will ensure that the Minister is not only aware of all activities undertaken by the intelligence services, but that s/he is able to curtail those activities which could potentially jeopardize the protection of the right to privacy. Thus, the Minister will be fulfilling his/her duties in accordance with the Constitution. In addition, judicial authorisation should also be required. This will reflect the gravity of commitment to uphold constitutional rights, especially the right to privacy. 

2. The Right to Privacy

The role of intelligence service is vital to all states, however it has the ability to impair the right to privacy, a fundamental democratic and human right. The right to privacy is entrenched in international law, most notably in the United Nations Declaration on Human Rights and the International Covenant on Civil and Political Rights. 

According to the Universal Declaration of Human Rights (Article 12):
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interferences or attacks. 

This provision is reiterated by the International Covenant on Civil and Political Rights (Article 17):
No one shall be subjected to arbitrary or unlawful interference with is privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.  

According to Section 231 (5) of the Constitution, South Africa is bound by international law unless it is inconsistent with the Constitution or an Act of Parliament. 

Section 14 of the Constitution is aligned with international law:
Everyone has the right to privacy, which includes the right not to have 
a) their person or home searched
b) their property searched
c) their possessions seized, and
d) the privacy of their communication infringed. 

The right to privacy is thus explicitly promoted by international law and the Constitution, protecting all persons in South African territory. It is important to note that an individual does not lose his or her right to privacy when leaving their homes or private space. The right therefore applies in all circumstances and environments. 

The Regulation of Interception of Communication and Provisions of Communication-Related Information Act (RICA) and the Oversight of Intelligence Services Act (65/2002) permits the interception of communication and searching of premises by designated bodies only with prior judicial authority.

 However, other intrusive methods employed by the intelligence service such as electronic and physical surveillance, infiltration of an organization and interception of communication without judicial authorisation, is not legislated and therefore unconstitutional. 

Furthermore, GILAB defines ‘foreign signals intelligence’ to “include communications “that emanates from outside the borders of the Republic, or passes through or ends in the Republic”. Local communications that pass through foreign servers as well as communication between South Africans and those based abroad could fall within this definition. This is highly problematic and we believe this should be subject to strict judicial oversight.

It is also of concern that ‘bulk interception’ or ‘environmental scanning’ is currently unregulated. There is no clarity as to what is done with this intelligence information and our concern is that personal data could still be retained. 

The use of intrusive methods as highlighted above, becomes problematic when the right to privacy is infringed. Intrusive measures also have the potential to violate other fundamental rights such as the dignity of individuals as well as freedom of movement and association, which are all protected by the Constitution. 

The importance of intelligence services in detecting and preventing criminal activity and safeguarding national security is acknowledged. However, there is cause for concern that intelligence-related activities may be abused and thereby undermine democracy by interfering with lawful activities and infringing upon the right to privacy. The interception of communication and the use of intrusive methods are not sufficiently restricted by existing legislation in line with the Constitution.

As the Matthews Commission Report has observed:

•	 Intelligence services use interception and intrusive measures covertly and the investigated individual is unlikely to learn of the investigation. The individual is thus not able object and challenge this in a court of law. Given that s/he is unable to challenge this, s/he thus loses their right to access the courts. 
•	The covert activities by the intelligence services reduces oversight and the ability to detect unlawful activity and any abuse of power.
•	The right to privacy is violated and the implications thereof may be greater than expected or intended, and violates other rights. 
•	Scrutiny of targeted individuals may invade the privacy of law-abiding citizens whom the targeted individual has contacted. 

It is proposed that the GILAB ensures:

•	Uniform legislation be developed that regulates the use of interception and intrusive measures. The grounds for interception and intrusion should be clear and consistent with international law and the Constitution.
•	Intelligence activity should be prohibited from infringing on the right to privacy of law-abiding persons and organizations. 
•	Intrusive measures must be carried out with strict regard for the law and the protection of an individual’s privacy, dignity, freedom and security. 
•	Intrusive measures may only be used as a last resort after all other alternatives have been taken into consideration.  
•	No interception (including foreign interception) should be warrant free based on the universal right to privacy. 
•	Bulk interception is strictly regulated and subject to judicial authorisation.

3. Budget and Financial Report Transparency

While the budget, audit and financial annual reports of the intelligence services are available to the Joint Standing Committee on Intelligence (JSCI), the relevant documents remain confidential and this information is not tabled in an open forum in Parliament. 

This poses a problem as it means that records of the intelligence services’ budgets and spending are not subject to full Parliamentary accountability. The status quo may therefore be in contravention of provisions of the Constitution. 

According to Section 215 (1) of the Constitution:
National, provincial and municipal budgets and budget processes must promote transparency, accountability and the effective financial management of the economy, debt and the public sector. 

Section 188(3) of the Constitution states:
The Auditor- General must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must be made public. 

The GILAB should reflect these constitutionally guaranteed principles of budgetary transparency and accountability. It is recommended that this Bill be further amended to explicitly include a legal obligation for the intelligence service to present its budget and audit to Parliament. In addition annual financial and audit reports should be made available to the public. 

In summary, we have highlighted three issues that we believe should be among those to be addressed by the GILAB in order to uphold the provisions enshrined in our Constitution, while ensuring that national security is maintained. 

Yours sincerely,

Shireen Mukadam 
Researcher: ISS Governance & Corruption Division

Hennie van Vuuren
Director: ISS Cape Town office