ATC201111: Report of the Joint Standing Committee on Intelligence on Activities of the Committee after five Months of Establishment, as Stipulated in the Intelligence Services Oversight Act, No. 40 Of 1994, Dated 27 October 2020

Joint Standing on Intelligence

REPORT OF THE JOINT STANDING COMMITTEE ON INTELLIGENCE ON ACTIVITIES OF THE COMMITTEE AFTER FIVE MONTHS OF ESTABLISHMENT, AS STIPULATED IN THE INTELLIGENCE SERVICES OVERSIGHT ACT, NO. 40 OF 1994, DATED 27 OCTOBER 2020

 

1.         INTRODUCTION

 

The Joint Standing Committee on Intelligence (JSCI) is established in terms of the Intelligence Services Oversight Act, No. 40 of 1994 (hereafter the Act), to perform the oversight functions set out in the Act. During the 6th Parliament, the Committee was constituted on 30 October 2019 after the process of undergoing vetting for Top Secret Security Clearance which is a statutory requirement. Having been nominated by their respective political parties, the Members of the JSCI are appointed by the President in consultation with the Speaker of the National Assembly and the Chairperson of the National Council of Provinces. In terms of section 2(4) of the Act, the President, in consultation with Speaker of the National Assembly (NA) and the Chairperson of the National Council of Provinces (NCOP), is empowered to appoint a Member, excluding those appointed to the Committee in terms of section 2(3), as the chairperson of the Committee.

 

2.         PURPOSE OF THE REPORT

 

The Constitution of the Republic of South Africa (1996) recognizes that Parliament has an important role to play in overseeing government departments and its public entities. The Act ensures that the JSCI performs the oversight functions, as set out in section 3, in relation to the intelligence and counter-intelligence functions of the Services, which include the administration, financial management and expenditure of the Services.

 

The purpose of this report emanates from section 6(1) of the Act which states that:

 

The Committee shall, within five months after its first appointment, and thereafter within two months after 31 March in each year, table in Parliament a report on the activities of the Committee during the preceding year, together with the findings made by it and the recommendations it deems appropriate, and provide a copy thereof to the President and the Minister responsible for each Service.

 

3.         APPOINTMENT OF THE JSCI

 

It is pertinent to note that the legal processes of finalising the appointment of the Committee were delayed for various reasons. Consequently, the Committee was appointed, in terms of the Act, on 30 October 2019. Subsequently, the first meeting of the Committee took place on 13 November 2019 following the swearing-in of Members. The Members of the Committee must takean oath or affirmation of secrecy before commencing with their functions as prescribed by the Act.

 

3.1        Composition of the Committee

 

The Committee consist of Members of Parliament appointed on the basis of proportional representation determined according to the formula set out in the Act. The Chairperson is appointed separately in terms of section 2(4) of the Act. Accordingly, the following seats were allocated to various political parties following the 2019 elections:

  • African National Congress (ANC):                       8 seats
  • Democratic Alliance (DA):                                  3 seats
  • Economic Freedom Fighters (EFF):                    1 seat

           

3.2        Present Members of the Committee

 

The present membership of the JSCI is composed of the following:

 

Name

Political party

Mr JJ Maake

NA (ANC): Chairperson

Ms LC Bebee

NCOP (ANC)

Ms MC Dikgale

NA (ANC)

Ms DE Dlakude

NA (ANC)

Ms NL Hermans

NA (ANC)

Mr G Magwanishe

NA (ANC)

Ms JM Mofokeng

NA (ANC)

Mr MK Mmoiemang

NCOP (ANC)

Ms ZV Ncitha

NCOP (ANC)

Dr MM Gondwe

NA (DA)

Ms D Kohler-Barnard

NA (DA)

Ms C Labuschagne

NCOP (DA)

Dr MQ Ndlozi

NA (EFF)

 

4.         ORIENTATION OF MEMBERS OF THE JSCI

 

The Act provides for the establishment of the JSCI to perform oversight functions related to intelligence and counter-intelligence functions of the Intelligence Services and report thereon to Parliament. After the Committee has been established, following the awarding of Top Secret security clearance certificates, Members must undergo intensive training or orientation in the field of intelligence. Section 5 of the Act clearly stipulates that “(t)he Committee shall conduct its functions in a manner consistent with the protection of national security”. Furthermore, “(n)o person shall disclose any intelligence, information or document the publication of which is restricted by law and which is obtained by that person in the performance of his or her functions in terms of this Act”. In order to adhere to the Act, intensive induction and training is provided to Members.

 

For the Sixth Parliament, orientation for the Members took place from 18 to 22 November 2019.It enabled Members to understand the nature of the environment coupled with the complexities of the Fourth Industrial Revolution and its implications to intelligence and national security; how to handle secrecy; and responding to public enquires on sensitive issues and related matters. The orientation prepared the Committee to function optimally, and to ensure the safety and security of information. More importantly, the newly established Committee was briefed on the functions and roles of the services and their entities. Additionally, the Committee received an overview of pertinent issues within the Intelligence Services namely; the State Security Agency, the South African Police: Crime Intelligence, and Defence Intelligence of the South African National Defence Force. The Office of the Inspector-General of Intelligence (OIGI) also inducted Members in order for them to understand the functions of the Inspector-General of Intelligence (IGI) as stipulated in Section 7(7) of the Act.

 

4.1        Interaction with the Acting Director-General of the State Security Agency

 

On 19 November 2019, the Committee interacted with the SSA. It was welcomed by the Acting Director-General (DG) of State Security and senior management. The presentation touched on the current status, challenges and recommendations on improving the Agency. The Acting DG clarified the illegality of the establishment of the SSA, which came into existence in 2009 after Proclamation 59 of 2009 by former President Jacob Zuma where several entities were amalgamated. Those included the National Intelligence Agency (NIA) that functioned as domestic intelligence with the mandate of gathering intelligence and counter-intelligence, the South African Secret Services (SASS) which gathered intelligence outside the borders, and other entities such as the National Communications Centre (NCC), which also gathered intelligence outside the borders on targeted people through bulk interception.

 

The Office of the Interception Centre (OIC), which is an entity of the SSA and functioning under the auspices of the RICA, may only intercept under the authority of a designated Judge on Interception. The proclamation and amalgamation process was illegal as it was not legislation. The proclamation was announced in July 2009 but only approved in October 2010. The legislation that amended the changes was only approved later in the form of the General Intelligence Laws Amendment Act, No. 11 of 2013.   

 

The gap between 2010 and 2013 resulted in serious concerns and illegal functioning of the SSA. For instance, the Chief Financial Officer (CFO) was to report to the Director Corporate Services which was a systemic problem. The new structure created a powerful DG with powers concentrated on a single individual. The amalgamation also enabled some members of the executive to issue illegal instructions to members of the SSA. These instructions amounted to executive overreach.

 

4.2        Interaction with the High-Level Panel Report Implementation Task Team

 

Representatives of the team provided a presentation on the High-Level Review Panel (HLRP). In 2016, the Strategic Development Plan (SDP) was established, which tampered with the structures. The JSCI in the Fifth Parliament objected to the establishment of the SDP and the former Minister stopped its implementation. In 2018, the structures reverted back to the one approved in 2010 which resulted in the displacement of people. During the same year, President Cyril Ramaphosa appointed a HLRP to review the SSA and determine whether it has capacity to discharge its constitutional mandate both in human and material resources, and to optimally use the budget allocation.

 

The panel thoroughly investigated the SSA and related structures,and came up with recommendations. A team of experts was put together to devise ways of implementing the recommendations which were endorsed by the President. The team indicated that implementation will be executed using a two-phased approach. The first focuses on the amendment of pieces of legislation such as Intelligence Services Act (No.38 of 1994), Intelligence Services Oversight Act (No. 40 of 1994) and National Strategic Intelligence Act (No. 39 of 1994). The second phase will be dealing with the review of the White Paper on Intelligence (1994) and fundamental changes. It was expected that migration would be done to implement the new structure and a new National Security Strategy will be drafted, the White Paper on Intelligence reviewed and a Council provided for by the Secret Service Act will be established.

 

The main objectives of reorganising the SSA include decentralisation of intelligence services, the optimal use of resources, greater focus on professionalism, and enhanced operational effectiveness. The Committee raised concerns that legislation could take long due to processes and would have suggested a possibility of either repealing the proclamation and the General Intelligence Laws Amendment Act of 2013. The Committee was also cautious of over regulating and weakening the SSA. The Acting DG informed the Committee that the Bill would be technical in nature for splitting the current Agency into two separate agencies. The intention is not to invent anything new. He also stated that the actual Bill was expected in 2022.

 

The Committee raised concerns regarding the issues expressed especially those affecting the function of Intelligence Services as a whole due to the legislative failure. The Committee could not delve deeper into the issues as the interaction was about induction and more matters were to be discussed in Parliament. The Committee was informed of other challenges such as vacancies in both the Domestic and Foreign Branches, corruption, the flouting of HR Policies in relation to the recruitment of some members of the Special Operations Unit, illegal protective services, a parallel vetting structure that issued fake Top Secret clearance certificates, and sniper training for non SSA members. There was also an abuse of the SSA mandate to further political agendas. The Committee recommended that a detailed presentation be made in the presence of the Minister. The challenges facing the Academy were also outlined.

 

4.3        Interaction with the Domestic Branch

 

The Deputy Director-General (DDG) Domestic Intelligence briefed the JSCI on the Domestic Branch. This programme is responsible for coordinating national, intra provincial and cross cutting operations aimed at countering threats and potential threats related to domestic instability, organised crime and corruption. She highlighted the various units in the branch.

 

Some of the challenges highlighted included human resources, acting positions, patriarchy, personnel retention, and inadequate budget allocation. The JSCI recommended that the Acting DG provide programme of action in addressing patriarchy, eradication of acting positions, security clearances issued through the parallel vetting structure and other challenges.

 

4.4        Interaction with Counter-Intelligence

 

The Acting DDG: Counter Intelligence made a presentation on Counter-Intelligence. It emerged that the programme had been paralysed by the previous notorious leadership. The Committee heard of illegal appointments and irregular temporary advances given to people who were not producing any results. A concern and suggestion was raised on review of legislation on hostile acts of foreign intervention, e.g. recruiting of agents by Foreign Intelligence Services (FIS). Various challenges facing Counter-Intelligence outlined included undeclared staff of foreign embassies which have been interacting with political principals and high level officials.

 

4.5        Interaction with the Foreign Branch

 

The Acting Director of the Foreign Branch, made the presentation. She provided a synopsis of the mandate, functions and posture of the Foreign Branch. Some of the challenges include the instability at management level and personnel shortage. The JSCI raised concerns about vacancies. It was recommended that acting positions be filled.

 

4.6        Interaction with the National Communications

 

The Acting General Manager, made a presentation on National Communications (NC). She commenced by outlining the mandate and functions, and the roles of the three entities; Signals Intelligence (SIGINT), ICT Security and the Office of Interception Centre (OIC). She then indicated that some of the challenges include human resources and obsolete equipment. Despite the challenges, several successes were highlighted. The JSCI raised concerns about vacancies. It was recommended that acting positions be filled. It was also recommended that additional resources be allocated to ensure that the equipment is up to date.

 

4.7        Interaction with the Intelligence Academy

 

The Acting Head presented on the Intelligence Academy (IA).  He commenced by focusing on the legislative mandate, followed by training strategic objectives and annual targets, and the high level structure.He then outlined challenges which included inadequate staff, a lack of clear training philosophy and capacity for effective training delivery. It was recommended that the IA should be resourced. The JSCI also undertook to conduct an oversight visit to the IA Mafikeng Campus.

 

4.8        Interaction with the National Intelligence Coordinating Committee

 

The Head of National Intelligence Co-ordinating Committee (NICOC) and his team presented to the JSCI. It was mentioned that the entity has been experiencing negative impact of acting in positions at the senior management level. One of the major challenges mentioned was the lack of sharing of information within the intelligence structures. However, the situation changed with the appointment of the current Acting DG of the SSA. Other challenges included numerous legislative challenges. However, it was hoped that the recommendations of the HLRP will resolve most of the challenges once implemented. To resolve some of the challenges with regard to sharing of information, the JSCI recommended that the National Security Council be revived, which subsequently took place in December 2019.

 

4.9        Interaction with the Chief Financial Officer of the SSA

 

The CFO of the SSA, made a presentation to the JSCI with regard to allocation for 2020/2021 to 2022/23. It was indicated that there has been a decrease in budget. It was indicated that restructuring back to NIA and SASS may result in a rise of compensation of employees due to the filling of statutory posts. The Committee recommended that adequate funds be allocated to the SSA. 

 

 

4.10      Interaction with the Office of the Inspector-General of Intelligence

 

Accompanied by his Principal Oversight Officers and the Legal Adviser, the IGI made the presentation on the OIGI. He outlined that the office’s functional responsibility is to report to the JSCI. In terms of challenges, the lack of regulations was cited as a major challenge. Other challenges included inadequate budget, lack of implementation of recommendations, intelligence failures and threat to the independence of the OIGI. It was recommended that the OIGI provide the JSCI with recommended solutions to the challenges.

 

4.11      Interaction with the Audit and Risk Committee

 

The Chairperson of the Audit and Risk Committee led the presentation and indicated that the function of the Committee is to oversee the effectiveness of governance processes, risk management processes, internal control environment and performance management which is an unfunded mandate. The main concern was the continuous and automatic audit qualifications based on to the nature of the business. She proposed an annual standing meetings between Audit and Risk Committee and the JSCI to present audit findings.

 

4.12      Interaction on the Minimum Information Security Standards (MISS)

 

The presentation gave all the details on the protection of information. The types of clearance certificates and explanation on the reasons for issuing them was clarified.

 

4.13      Interaction with the South African Police Service Crime Intelligence Division

 

The Divisional Commissioner: Crime Intelligence presented to the Committee. He outlined the various clusters. One of the major challenges mentioned was the inadequate budget, which is a huge hindrance in terms of optimal functioning. Other challenges mentioned included the difficulty to combat crime in the county without maintenance of CI capability which includes the recruitment, infiltration, handling and support of informants, police agents, co-workers and contacts.

 

5.         MEETINGS OF THE COMMITTEE IN PARLIAMENT

 

From its establishment to the declaration of the National State of Disaster due to Covid-19, the Committee held 9 meetings as follows:

 

No

Date

Agenda

1

Wednesday, 13 November 2019

Closed meeting

2

Wednesday, 27 November 2019

Closed meeting

3

Friday, 29 November 2019

Closed meeting

4

Tuesday, 03 December 2019

Closed meeting

5

Wednesday, 05 February 2020

Closed meeting

6

Wednesday, 12 February 2020

Closed meeting

7

Wednesday, 26 February 2020

Closed meeting

8

Friday, 28 February 2020

Closed meeting

9

Wednesday, 04 March 2020

Closed meeting

 

6.         IMPACT OF COVID-19 ON THE JSCI

 

Covid-19, which resulted in the lockdown has impacted every level of the society including Parliament. The Presiding Officers suspended the business of the Houses of Parliament. The NAsuspended its business from 18 March, while the NCOP from 19 March 2020. Similar to other institutions, Parliament embarked on exploring effective means for conducting virtual Parliament work using available technologies. This resulted in successful virtual Parliamentary committee meetings conducted over MS Teams and Zoom platforms. Since then, virtual and hybrid sittings of the Houses of Parliament have occurred. Due to the nature of its operation, the JSCI was unable to hold meetings because of cyber security concerns concomitant with MS Teams and Zoom. Consequently, the backlog compounded by the fact that the Committee was only constituted in November 2019, continued. Subsequently, several attempts were made for approval to hold meetings in Pretoria to deal with urgent matters and other outstanding matters. Approval was granted for the JSCI to convene in Pretoria for special meetings with Intelligence Services and the OIGI. The outstanding matters formed part of the JSCI programme that would have been concluded in the first five months. Consequently, Covid-19 delayed the finalisation of the report of the Committee five months after its first appointment which would have ended in March/April 2020. 

 

7.         SPECIAL MEETINGS WITH INTELLIGENCE SERVICES IN PRETORIA

 

From 25 August to 04 September 2020, the Committee held special meetings with the OIGI, the SSA, DI, SAPS-CI, Audit and Risk Committee of the SSA and the Staff Council of the SSA. For each of the days indicated below, the Committee held several meetings:

 

No

Date

Agenda

1

Tuesday, 25 August 2020

Closed meetings

2

Wednesday, 26 August 2020

Closed meetings

3

Friday, 28 August 2020

Closed meetings

4

Tuesday, 01 September 2020

Closed meetings

5

Wednesday, 02 September 2020

Closed meetings

6

Thursday, 03 September 2020

Closed meetings

7

Friday, 04 September 2020

Closed meetings

 

The main purpose of the special meetings was to receive briefings on developing matters such as the insurgency in the Cabo Delgado Province in Mozambique as widely reported in the media, and other matters of national security. The Committee also received an update on the legislation that will separate the SSA into two entities. It also dealt with outstanding matters that were in the Committee programme for the second term such as Strategic Plans, Annual Performance Plans and Budgets of the services. These matters would have been completed within the first five months after the Committee was appointed. Other matters included the engagement on complaints from members and former members of the SSA, the filling of senior management vacancies, the Audit and Risk Committee, the Staff Council, and updates on the implementation of the HLRP Report.

 

Report to be considered.

Documents

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