ATC100526: Annual Report of the Joint Standing Committee on Intelligence (JSCI) for the financial year ended 31 March 2008, as agreed by the JSCI on 12 May 2010 and submitted in compliance of section 6 of the Intelligence Services Oversight Act, No 40 of 1994
Joint Standing on Intelligence
(a)
Annual Report of the Joint Standing Committee
on Intelligence (JSCI) for the financial year ended 31 March 2008, as agreed by
the JSCI on 12 May 2010 and submitted in compliance of section 6 of the
Intelligence Services Oversight Act, No 40 of 1994:
TABLE OF CONTENTS
1.
Introduction
2.
Accountability and Oversight
3.
Legislative responsibility
of the Committee
4.
Intelligence Structures
5.
International work of the
JSCI
6.
Other activities of the JSCI
7.
Recommendations
8.
Conclusion
9.
Glossary
Annexures
:
A
Reports of the Auditor-General
(available from the Office of the Clerk
of the Papers)
B
Annual report of
applications in terms of Act No 127 of 1992
C
Programme for the financial year 2007‑08
1.
INTRODUCTION
This annual report examines and reflects on the
mandate of the Joint Standing Committee on Intelligence (JSCI) during the
period under review. Accordingly, the mandate of the JSCI will be examined
within the parameters of the Intelligence Services Oversight Act, No 40 of
1994.
It is important to note that the JSCI is a
parliamentary committee established in terms of the Intelligence Services
Oversight Act, No 40 of 1994 (hereinafter the Act). The members of the JSCI
and the Chairperson are appointed the Speaker of the National Assembly and the
Chairperson of the National Council of Provinces, with the concurrence of the
President.
The Act provides for the establishment of a
Joint Standing Committee to perform oversight functions related to intelligence
and counter-intelligence functions of the Intelligence Services and report
thereon to Parliament. The reporting includes the administration, financial
management and expenditure of the Services and Intelligence Services Entities.
Accounting officers of the various intelligence
structures/services are required to account to the JSCI in a manner that
entrench a culture of oversight and accountability, thereby enhancing
Parliament as a pivotal national institution serving the people of South
Africa.
2.
ACCOUNTABILITY
AND OVERSIGHT
Currently, the Services over which the JSCI has
an oversight function are the National Intelligence Agency (NIA), South African
Secret Services (SASS), and Intelligence Division of the South African National
Defence Force (DI) and the Intelligence Division of the South African Police
Services (CI).
The Intelligence Services Entities include the
South African National Academy of Intelligence (
Sanai
),
Electronic Communications Security (Pty) Ltd (
Comsec
)
and the Office for Interception Centres (OIC) including activities of the
Intelligence Services Council (ISC), which deals with the conditions of service
of the intelligence community.
In performing its oversight function, the JSCI
is supported by the following structures that are accountable to the Committee:
·
The Ministers of Intelligence, Defence and Safety and
Security;
·
The Auditor‑General;
·
The Inspector-General of Intelligence; and
·
The Judge designated to consider applications for the
interception of communications in terms of the Interception and Monitoring
Prohibition Act 127 of 1992.
3.
LEGISLATIVE
RESPONSIBILITY OF THE COMMITTEE
The legislative mandate of the JSCI derives from
the Intelligence Services Act, 40 of 1994, some of which are the following:
·
To obtain a report from the Auditor-General on the
financial statements of the Services.
·
To obtain a report from the Evaluation Committee on
the secret services evaluated and reviewed by it, together with comments or
recommendations.
·
To obtain from the designated Judge a report regarding
the functions performed in terms of the Interception and Monitoring Prohibition
Act including statistics of interception requests made by the Services.
·
To consider and make recommendations on the report and
certificates presented to it by the Inspector-General of Intelligence.
·
To consider and make recommendations on all proposed
legislation relating to the Services and Agencies and to initiate legislation
in connection with such Services and Agencies.
·
To order investigation by and to receive a report from
the Head of a Service or the Inspector-General regarding any complaint received
by the Committee from any member of the public regarding anything, which such
member believes that a Service has caused to his or her person or property.
3.1
RECOMMENDATION TO JOINT RULES COMMITTEE
In line
with the Act the JSCI in the previous financial year submitted a set of Draft
Rules for the JSCI to the Joint Rules Committee (JRC) for consideration. The
rules of the JSCI have now been adopted by the JRC on 13 March 2008. The
Committee will however, continue to engage with the Rules Committee to look at
strengthening the rules, particularly on those sections dealing with staff‑related
matters.
3.2
REPORTS OF THE AUDITOR-GENERAL (AG)
The
Committee has a responsibility in accordance with the Act, to obtain from the
Auditor-General an audit report in line with section 22 of the Public Audit
Act, No 22 of 2004, and after obtaining the report, to consider the financial
statements of the Services, Academy and
Comsec
; any
audit reports issued on those statements and any reports issued by the Auditor‑General
on the affairs of the Services and Intelligence Services Entities, and report
thereon to Parliament.
In the
year under review, the Committee met and requested the AG to assist with
investigations on the
Comsec
building and a sensitive
project of Defence Intelligence. The working relationship between the JSCI and
AG was further strengthened by the signing of the Memorandum of Understanding
between the two offices. The reports of the AG in relation to the Services have
been attached as Annexure A
(available
from the Office of the Clerk of the Papers)
. The JSCI will monitor all the
issues raised by the AG.
3.3
RECOMMENDATIONS ON LEGISLATION RELATED
TO THE SERVICES
The Committee received
briefings from the Ministry on legislation to be introduced in 2008
, which included
the following Bills:
·
Protection of
Information Bill
This Bill seeks to provide, amongst other
things, for the protection of information that is in the possession of organs
of State, particularly information that is in the hands of our intelligence and
security forces. The Bill also seeks to prevent and curb information peddling,
as well as to fill the existing gap in relation to espionage threats to the
State posed by private intelligence companies or by individuals engaged in
intelligence gathering activities.
·
National Strategic
Intelligence Amendment Bill
The Bill seeks to enhance the
vetting capacity of our intelligence services and State by means of
decentralising certain pre-employment checks to clients, creating Vetting
Fieldwork Units in selected client institutions; capacitate the National
Intelligence Agency and promote cooperation in relation to vetting within the
intelligence community. The Bill also provides for the functions of the NCC.
·
Intelligence
Services Amendment Bill
The Bill provides for the
establishment of the NCC. It also provides for the removal of the requirements
of a training fund for the Academy. It also seeks to repeal the establishment
of a Ministerial Advisory Committee on training and to remove the requirement
for the Minister to approve functional directives.
The Committee also received a briefing from the
Office of the Inspector‑General of Intelligence on the regulations
pertaining to Intelligence. However, the Committee raised its concern about the
slow pace on the finalisation of these regulations.
3.4
THE MINISTERIAL REVIEW COMMISSION
The Minister of Intelligence established the
Ministerial Review Commission in August 2006. The terms of reference of the
Commission were meant to cover:
·
executive control of the intelligence services;
·
control mechanism relating to intelligence services
operations;
·
control over intrusive methods of investigation;
·
political and economic intelligence;
·
political non-partisanship of the intelligence services;
·
the balance between secrecy and transparency; and
·
Controls over the funding of covert operations.
The Committee has received a briefing from the
Ministerial Review Commission. The JSCI also raised its concerns about the lack
of regulatory policies and legislation, which are not as yet in place. The
Committee maintained that the Minister should introduce legislation on the
National Communications Centre (NCC) with regulations as a priority. The
Committee is still concerned about the Commissions failure to table the draft
report by 30 June and final report by end of 2007 as stipulated in their terms
of reference. This may have financial implications, which have become a matter
of serious concern to the JSCI.
3.5
INVESTIGATIONS CONDUCTED AND REFERRALS RECEIVED
BY THE COMMITTEE
In the year under review, the JSCI conducted the following
investigations:
·
Complaint by the SACP on the
Consolidated Special Browse Mole Report. A special report on this
investigation was tabled in Parliament on 26 February 2008.
·
A sensitive project in DI
with potential serious financial implications for the Department of Defence.
The JSCI requested assistance of the AG in this investigation and will report
to Parliament in due course.
·
The JSCI also investigated
the huge escalation in the costs of the new
Comsec
building. The Committee requested the assistance of the AG on this
investigation and will report to Parliament in due course.
Finally,
the Committee resolved to monitor the implementation of its recommendations.
3.6
RECOMMENDATIONS ON
INTERDEPARTMENTAL COOPERATION AND COORDINATION OF INTELLIGENCE
The National
Intelligence Co-ordinating Committee (
Nicoc
) is a
structure that comprises of the heads of all the Intelligence Services and
therefore depends on a buy-in from the Coordinating Committee and the relevant
organisations/departments on its approach to the coordination of intelligence.
In the year under review,
Nicoc
was still operating without approved regulations for the coordination of
intelligence. This was a matter of concern to the Committee because the same
issue was raised in the 2005‑06 annual report of the JSCI.
However, the JSCI welcomed the move by
Nicoc
to convene a subcommittee for the drafting of
regulations for coordination during the year under review.
In trying to assist
Nicoc
with coordination, the Committee resolved the following in the year under
review:
-
The JSCI will ensure that all briefings
done by
Nicoc
would be done in the presence of
all the
Nicoc
principals and not only by the
Nicoc
coordinator.
-
The Committee will monitor the Services through briefings, annual
budgets and reports to ascertain if challenges of coordination are being
addressed.
-
The JSCI will engage all role players in the intelligence community
to discuss the issue of coordination.
Despite all the shortcomings, the JSCI has noted
that the Special Project Teams at
Nicoc
level have
improved the products of the organisation. The Committee also welcomes the work
of the Services in assisting the South African Government on its African
missions.
3.7
REPORTS FROM THE SECRET SERVICES
EVALUATION COMMITTEE ON THE SECRET SERVICES ACCOUNT
According
to the Intelligence Oversight Act, No 40 of 1994, section 3(a)(ii) one of the
functions of the Committee is to obtain from the Evaluation Committee a report
on the secret services and intended secret services evaluated and reviewed by
it, together with any comments or recommendations which the Evaluation
Committee may deem appropriate.
The JSCI
is, however, concerned that despite numerous attempts it has not as yet been
able to secure any meetings with the Evaluation Committee.
3.8
REPORTS FROM THE JUDGE RESPONSIBLE FOR
THE ISSUING OF DIRECTIONS AS DEFINED IN SECTION 1 OF THE INTERCEPTION AND
MONITORING PROHIBITION ACT, 1992 (ACT 127 OF 1992)
The Committee welcomed
the appointment of Judge DM
Swarts
, who was appointed
on 1 November 2007 in terms of section 3(1
)(
a) of the
Interception and Monitoring Prohibition Act, No 127 of 1992.
The Judge reported to
the Committee that he had to seek legal opinion on the following aspects:
·
whether a designated judge
under Act No 127 of 1992 could issue directions in terms of Act 70 of 2002 and
the Regulation of Interception of Communications and Provision of
Communication-Related Information Act, No 70 of 2002;
·
whether as a released judge
from active service, he could still be regarded as a judge of the High Court
for the purposes of section 19 of Act No 70 of 2002; and
·
whether
he could validly be appointed as designated judge in terms of Act No 70
of 2002 while holding an appointment as designated judge in terms of Act No 127
of 1992.
Judge Swart also confirmed that he is receiving full
support from the Agencies and is satisfied with the standard of applications
sent to him for authorisation. Very few applications were declined. He did
however, provide reasons for those refused or deferred applications.
The Judge agreed with the Committee that the repeal
of Act No 127 of 1992 should be done as a matter of urgency. The Committee will
meet with the Minister of Justice and Constitutional Development to discuss the
undesirability of the two acts operating simultaneously.
3.9
CONSIDERATION
OF REPORTS AND CERTIFICATES ISSUED BY THE INSPECTOR GENERAL FOR INTELLIGENCE
SERVICES
In terms of section 7(11) (d) of the Intelligence
Services Oversight Act, No 40 of 1994, the Joint Standing Committee on
Intelligence must receive from the Inspector-General (IG) the following:
-
A report on the
activities of each Service or Agency for the preceding 12‑month period;
and
-
A certificate
stating the extent to which the Inspector‑General (IG) is satisfied with
that report and whether anything done by a Service or Agency in the course of
their activities during the preceding 12‑month period is unlawful or
contravenes any directions issued by the relevant Minister or involves an
unreasonable or unnecessary exercise by that Service or Agency of its powers.
In the year under review the IG piloted
the issuing of certificates of annual reports for NIA, SASS and NCC. While the
process was not perfect, it firmly laid the foundation for future improved
certification process.
However, certain matters were of concern
to the Committee:
·
The
prospect of success in the court cases the IG was dealing with emanating from
the email investigations.
·
The
capacity of the staff in the OIG. This was clearly displayed by the delays in
issuing the report of the 2006 International Intelligence Review Agencies
Conference (IIRAC), which took, about a year to complete.
4.
INTELLIGENCE STRUCTURES
4.1
NATIONAL
INTELLIGENCE AGENCY (NIA)
The National Strategic
Intelligence Act of 1994 defines the primary functions of NIA. These functions
include:
·
To fulfil a
proactive or early warning role of scanning and assessing the total domestic
security situation, to identify and report to the policy maker or executive
departments any signs or warning signals of threats or potential threats;
·
To perform a
reactive role of tracking events when a threat or a crime has been identified,
without duplicating the role of other executive departments;
·
To provide an
integrated, multi-analytical, strategic, projective assessment of patterns,
trends and security relevant issues.
For the year under
review, NIAs performance was based on the following strategic objectives
:
·
To focus on NIAs
offensive and defensive activities and capabilities;
·
Integration of
NIAs processes, activities and structures;
·
Optimisation of
NIAs people, technology, infrastructure and information;
·
Ensuring
effective communication throughout the organisation.
NIA was also
involved in the interdepartmental Task Team which was
setup
by the National Security Council to investigate the origins of the Browse Mole
Consolidated Report. The work of the Task Team has displayed the benefits of
coordination and, to that effect, the Committee would like to encourage the
Services to take the benefits of this coordination to
Nicoc
level.
NIA has
started the process of creating new Vetting Fieldwork Units (VFU) and a
creation of a new position of Chief Director External Vetting with 55 posts to
deal with the backlogs presently encountered in the departments.
The national vetting strategy provides that
NIA should recruit officials for conducting vetting. The first recruits joined
the new Vetting Directorate during the course of December 2007.
The first four departments to form
VFU according to the National Vetting Strategy are the Department of
Correctional Services (DCS), Trade and Industry (DTI), Home Affairs (DHA), and
Minerals and Energy (DME).
The establishment of VFU brought along a loss of
experienced investigators to
inter
alia
,
other government departments. The capacitating of
these units with experienced NIA personnel is, however, an advantage.
4.2
INTELLIGENCE
SERVICES COUNCIL (ISC)
Section
22 of the Intelligence Services Act, 2002 (Act No 65 of 2002, as amended) sets
out the functions of the Intelligence Services Council as follows:
·
To make recommendations to the Minister on
the development of policies on Conditions of Service and human resource
matters;
·
To make recommendations to the Minister on
improvements of salaries and fringe benefits of members on an annual basis;
·
To promote measures and set standards to
ensure the effective and efficient performance and implementation of policies
on human resources within the Academy or the Intelligence Services, as the case
may be, and to make recommendations to the Minister.
The objectives for the year under review:
·
To monitor and evaluate the implementation
of HR policies and directives in line with the Regulations on Conditions of
Service and applicable legislation;
·
Continuous review of the Intelligence
Services Regulations on condition of service;
·
Ensure alignment and compliance of policies
and directives with the regulations and applicable legislation;
·
Align and deliver
ISCs
functions/services in conjunction with Ministerial priorities and
ISCs
mandate;
·
Build and maintain strategic relationships
with stakeholders and clients.
In order to achieve their objectives the ISC will be
focusing on:
·
Review of the Intelligence Services
Regulations on Conditions of Service;
·
Monitoring and evaluating the
implementation and alignment of Directives with Regulations approved by the
Minister;
·
Review of Conditions of Service and
benefits;
·
Ensure that Consultative Forums are operating
effectively.
The year
2007‑08 saw the need for the Intelligence Community to review regulation
on Conditions of Service. Since the promulgation and establishment of the ISC
in 2003, several inputs have been brought to the attention of the Committee on
gaps, anomalies and updates that needed to be considered in order to amend the
regulations concerned.
Effective
consultation between the ISC, Management of the Civilian Intelligence Services
and Staff Council remains critical. Moreover, sufficient co-operation between
the Civilian Intelligence Services in the formulation, implementation and
monitoring of policies on Conditions of Services and HR related matters remain
high priority.
The
Committee would like to encourage the ISC to continue assisting the Minister by
ensuring that they fulfil their roles and responsibilities as set out in the
Intelligence Services Act, 2002 (Act No 65 of 2002, as amended).
The ISC
should also ensure that the Consultative Forums operate effectively. Lastly, an
organisational health report should also be compiled.
4.3
THE
NATIONAL COMMUNICATION CENTRE (NCC)
The
NCCs
mandate as approved
by Cabinet in April 2000 is to establish a single signals intelligence capacity
encompassing national communications collection for the protection of the
interest of national security. This mandate involves the interception of bulk
cross-border communications signals that can be processed into intelligence
products that will support the domestic and foreign policy initiatives of Government.
The NCC was further reminded by the JSCI to focus on
collecting international bulk communications, as is their mandate and not to
intercept domestic communications.
The Committee clarified its position in terms of
national interceptions and stated that the only solution was to resort to
legislation to ensure legal interception of such communications.
NCC would prioritise the strengthening of research and
development for new signals technology.
4.4
OFFICE
FOR INTERCEPTION CENTRES (OIC)
The
Committee visited the OIC in the year under review and was able to observe some
progress regarding the operation of the institution. The OIC identified amongst
others, the following concerns:
·
Telkom
has to upgrade their systems to the digital world by buying new
switches and IP addresses might be the solution in order to channel
communications to all urban areas;
·
The tariffs to be paid to
Telecoms
services provider have not been finalised;
·
Proper vetting of personnel
involved in the chain of interception;
·
Regulations of tariffs had not
yet been finalised.
During this visit the Committee was also briefed about the
proposal by the OIC that they proposed moving towards processing electronically
interception applications with the judge electronically. The Committee supports
this move as it is intended to improve the efficiency of the process of
applying for interceptions orders.
The Committee met with relevant Ministers involved, including
Ministers of Justice and Communications to deal with all the challenges facing
the OIC in fulfilling its mandate of legal interception of communications. The
Committee welcomes the intervention and cooperation to assist the OIC in
fulfilling its mandate. The Committee hopes that the Department of Justice and
Constitutional Development will move with speed to finalise the tariffs. The
Minister of Intelligence undertook to follow up the issue of vetting of staff
involved with interception including the people working at
Telkom
.
4.5
ELECTRONIC
COMMUNICATIONS SECURITY PTY (LTD) (
Comsec
)
The mandate of
Comsec
is
to ensure that electronic communications infrastructure of all organs of state
are protected and secured. When approving the 2005‑08 business plans for
Comsec
, the Minister directed the entity to focus on
research and development of secured communication products
.
The Committee held several meetings with
Comsec
to discuss the problems encountered from the
escalation and de-escalation of costs during the construction of their new
building. After a report from the Auditor-General, the Committee requested an
intensive investigation on whether an Environmental Impact Assessment (EIA) and
Geological Impact Assessment (GIA) were done before construction.
The Auditor-General made the following findings:
·
Irregular
expenditure incurred between 2005/06 due to lack of management monitoring and
review of treasury regulations in respect of the supply chain management
requirements that were not adequately adhered to;
·
Comsec
had appointed a consortium
without inviting other service providers to submit quotations;
·
Tender processes
were not followed;
·
Despite the fact
that the former DG had put the construction on hold,
Comsec
went ahead.
The building was supposed to be finished by the end
of 2007 but due to delays caused by rain and dolomites, the building was
expected to be ready for occupation by March 2008. Further findings noted that
the contracts were not signed; the role of project managers was not clear and
seems not to have been thoroughly done. The AG was subsequently tasked by the JSCI
to audit the
Comsec
building project and present a
report on the matter.
Following
the report of the AG, the Committee resolved to facilitate a special
investigation into the construction of the
Comsec
building with special regard to the following matters:
·
The awarding of the contracts;
·
The role of the project managers and how
they were appointed;
·
The role played by the people who were
supposed to supervise the project;
·
Ascertain whether the Environmental Impact
Assessment (EIA) and Geological Impact Assessment (GIA) were carried out, and
if so, whether consideration was given to them.
The
Committee will report on this matter in due course.
4.6
The Committee in previous annual reports has raised
several concerns about the performance of
Sanai
. In
this regard, the Committee has found and acknowledges that progress has been
made after visiting the institution from 30 - 31 July 2007. The objective of
the visit was to
determine the functioning of
Sanai
, e.g. what
kind of training is given; how people are identified for the training and how
finances are managed; concerns raised by the Auditor-General; and, the
challenges experienced by the institution.
The Committee noted that there was great improvement
in management and functioning of the institution. There was a better focus on
curriculum. The institution has a new library that will benefit the students.
The JSCI mentioned in the previous annual reports
about the delays in the case regarding the Deputy Principal of the Academy. The
case has now been internally finalised, however, the aggrieved party remains in
possession of the premises at
Sanai
and the matter is
now before the court.
The Committee has noted
the
improvement in recruitments from most departments but the Committee is still
concerned about problems that are still being encountered in the recruitment of
core business staff. The institution had increased accommodation and training
venues were furnished. Most of the core business training was to be accredited
before the end of the financial year.
However,
the Committee will monitor
Sanais
underperformance
and
underspending
and will assess whether the
institution can do formative training under the prevalent circumstances.
The
Committee is still concerned, as indicated in previous reports, about the
Sanais
issuing of academic certificates that were not
accredited by the South African Qualifications Authority (SAQA). This state of
affairs was
demotivating
to new recruits and members
that were attending short courses since certificates were not market-related.
This practice further contradicted the fact that the Academy was of
international standard where quality was maintained.
4.7
THE
NATIONAL INTELLIGENCE COORDINATION COMMITTEE (
Nicoc
)
Nicoc
is mandated to co-ordinate the intelligence supplied by the Services and to
interpret national strategic intelligence for use by the State and the Cabinet,
and to identify any threat or potential threat to national security, and to
protect and promote the national interests of
In
terms of Act No 39 of 1994,
Nicoc
prepares and
interprets the National Intelligence Estimates (NIE).
Nicoc
made progress with capacity‑building during 2007‑08 period. One
focus area was to ensure building of capacity in the National Early Warning
Centre
(NEWC).
The
capacity of the Analysis Component was significantly enhanced during the review
period with the appointment of analysts for the Project Teams.
Nicoc
faces a variety of challenges in building capacity in its core business
analysis. These challenges include ensuring that all
Nicoc
members understand the nature, role and function of intelligence; the clients
expectations on intelligence; as well as the deepening of analysis to
significantly improve the quality of intelligence products.
In
January 2007 the
Nicoc
Executive Management Committee
(EMC) approved a comprehensive Training Plan for
Nicoc
informed by a training needs analysis development plan and skills audit of
Nicoc
members. Part of the focus during 2007 was to ensure
that analysts attended foreign language training in Arabic, French and Chinese
in terms of a Ministerial instruction.
Nicoc
developed an internal induction
programme
for new
members and
Sanai
customized an Intelligence
Orientation and Basic Analysis training
programme
for
all
Nicoc
members.
Nicoc
during the reporting period produced the National Intelligence Estimate, 49
intelligence assessments, nine months JCPS briefings, 44 Ministerial Weekly
Briefs and 179 Open Source Dailies.
Nicoc
further
successfully presented a scene-setting presentation to the January 2008 Cabinet
lekgotla
.
During 2007
Nicoc
also commenced with the visual
enhancement of the Ministerial Weekly Brief. This has also been extended to
other products such as assessments. The Open Source Daily has been established
as a regular daily product that is disseminated to the members of the National
Security Council (NSC).
During
2007 the access to open‑source information was improved through an
increase in subscriptions to online journals and databases.
One
of the key challenges facing
Nicoc
for 2007‑08
is to significantly improve coordination. The Coordinator, as part of his
travel
programme
, will visit coordinating
counterparts in other countries to engage on different methods for coordination
as part of a process to refine the coordination effort within
The
main thrust
of
Nicocs
2007-08
Strategic Plan
was to develop the Project Teams as one of the key
drivers for effective national intelligence coordination. The Project Teams
ensured the deepening of synergy with regard to intelligence sharing and
coordination among all services in the community. The Teams are composed of
Nicoc
analysts as well as members from NIA, SASS, SAPS
Crime Intelligence, SANDF
Defence
Intelligence and
the Department of Foreign Affairs. Other departments are co-opted when
necessary and required. The decision to establish Project Teams was a good and
progressive one.
Nicoc
made significant progress in establishing a fully functioning South African
National Early Warning
Centre
.
Nicoc
now needs to ensure the regular production of early warning intelligence
capacity with additional analysts, ensure that NEWC functions on a 24-hour
basis and ensure that procedures for the processing and dissemination of early
warning intelligence are developed and implemented.
The
Regional Early Warning
Centre
(REWC) is expected to
be launched within the coming months. The key challenge is the establishment of
secure electronic links between the REWC and the different National Early
Warning
Centres
within SADC member states.
4.8
DEFENCE
INTELLIGENCE (DI)
In the
2005‑06 annual report the JSCI raised its concerns about the continuous
loss of staff by DI. In the reporting year DI lost a total of 57 staff members
mainly due to departmental transfers. The Committee acknowledges the success of
the capacity building programmes for personnel at DI, which has produced highly
skilled staff.
It is however, important
for DI to strengthen their retention strategies in order to minimise the loss
of staff. One of the causes for staff to leave as identified by DI was working
conditions, which would need to be improved.
The JSCI
visited DI on 2 3 August 2007. The objective of the visit was to look at the
existing structure and analysis of human resource issues emanating from the
Annual Report presented to the JSCI. However, the JSCI welcomes the
achievements and future plans that DI has made on ABET programmes for staff
that do not posses formal educational qualifications. The Committee believes
that an intervention such as this not only develops capacity of staff but also
goes a long way in motivating them to work harder and have a high level of work
ethics.
The JSCI welcomed the move by Treasury
to investigate the loss of skilled staff to other departments because of salary
differences. The Committee was also requested by DI to assist in resolving the
issue of having its own head quarters building.
Amongst
some of the achievements of DI are the following:
·
24
members are involved in ABET training with five (5) positions made available
for the ABET members to apply at administrative level;
·
As mentioned in this report, the JSCI will monitor
the investigation by the AG into the sensitive project within DI.
4.9
CRIME
INTELLIGENCE (CI)
Crime
Intelligence is one of the 12 Divisions within the South African Police Service
(SAPS). It is responsible for the management of information gathering,
centralisation and integration of intelligence management and coordination and
analysis of intelligence. The intelligence gathered is specifically directed at
crime and criminal activities. The Division also provides technical
intelligence support to operational components within the Division as well as
other operational divisions within the SAPS.
The
Division was restructured with the most significant changes being the
centralisation of command and control of the nine provincial offices under the
auspices of CI Head Office.
Priorities
are prescribed to CI by the SAPS, as part of its five year Strategic Plan and
its Annual Operational Plan, and by the National Intelligence Coordinating
Committee (
Nicoc
), which derives its priorities from
the National Intelligence Estimate (NIE). The Division also elects priorities
it deems necessary to address localised threats as well as to deal with
incidental priorities, which may arise from time to time.
The
Division plays a dominant role in the management, analysis and publication of
crime statistics to guide policy makers and operational managers in their
determination of appropriate action. This management processes continuously
focuses on data integrity.
To deal
with the
transnational
character of the criminal
activity affecting the country, CI continues to maintain lines of
communications with foreign law enforcement agencies. This cooperation with
foreign law enforcement agencies are done through platforms such as Interpol
and the Southern African Regional Police Chiefs Coordinating Committee
(SAPRCCO).
During
the period under review, CI had a National Component, which consisted of the
Office of the Divisional Commissioner and four components,
viz
Corporate Services, Intelligence Operations, Crime Information Management, and
Counter-Intelligence. Each component consisted of sections within which more
specialised and focused functions were performed. A similar structure existed
at provincial level.
In the
forthcoming financial year, CI will be a single national entity command and
control centralised at Head Office under the auspices of the Divisional
Commissioner. Provincial entities will continue to exist and the Division will
assert a direct presence down to station level. It is envisaged that the new
Crime Intelligence structure will facilitate improved flow of information.
For the
first three quarters of the current financial year, the Crime Intelligence
Division generated thousands of reports and conducted or provided assistance in
thousands of operations. As a result of the support provided by Crime
Intelligence, 8820 suspects were arrested and goods with an estimated value of
over R500 million were seized or recovered.
Funding
for CI to perform its mandated functions emanates from two distinct sources,
viz
the Secret Service Account and the SAPS Open Account
budget. The manner in which funds are allocated and its accounting differ
significantly and affect Crime Intelligence performance. Crime Intelligence has
greater control over the Secret Service Account while the allocations and
control mechanism related to the SAPS Open Account is determined by SAPS
organisational procedures. The Committee has an oversight function over the
Secret Service Account.
CI
invests considerable resources to enhance the skills levels of its personnel.
The retention of skilled and experienced personnel is however, a particular
challenge to CI. The Division experiences an ongoing turnover of staff. Because
of the nature of the training provided and skills obtained within the CI
environment, their personnel are sought-after and are attracted to better
remuneration positions in other government departments as well as within the
private sector. As a result of the lack of any effective retention policy, the
Division has no assurances that skilled and experienced personnel will remain
within the division. This is of serious concern to the JSCI and needs to be
urgently addressed.
4.10
SOUTH
AFRICAN SECRET SERVICES (SASS)
The
mandate of SASS is derived from section 2(2) of the Intelligence Service Act
(Act No 39 of 1994). The functions of the service, subject to section 3 are:
·
To gather, correlate and analyse foreign
intelligence excluding military intelligence in order to identify any threats
and or potential threats to the security of the Republic and or its people and
to supply intelligence relating to any such threat to
Nicoc
;
·
To ensure counter intelligence measures
within the Services; and in consultation with the Agency, counter intelligence
measures outside the Republic; and
·
To gather departmental intelligence at the
request of any interested department of State, and, without delay to evaluate
and transmit such intelligence to the department concerned and to
Nicoc
.
In the
year under review, SASS was successful in providing forewarning information in
support of important political developments and in support of peace efforts in
5.
INTERNATIONAL WORK OF THE JSCI
The Committee received an invitation from
The JSCI was particularly interested in evaluating
the manner in which the oversight entities in
The Norway Intelligence Oversight Committee has been
operating for some time and the JSCI delegation gained valuable insight and
experience from the visit.
The Swedish Parliament is still contemplating
forming a similar oversight structure but information sharing with the JSCI
laid the foundation for the building of their committee. The Speaker of the
Swedish Parliament has promised to visit the Parliament of South Africa and
more formal interaction with the JSCI is accordingly contemplated.
Other
international obligations of the JSCI resulted in the Chairperson of the JSCI
attending a preparatory planning session in March 2008 for the coming IIRAC in
6.
OTHER ACTIVITIES OF THE JSCI
The JSCI held its annual strategic planning session from
13 15 January 2008 at the
The following were
identified as some of the challenges facing the Committee:
·
The appointment of a
researcher;
·
To receive a
report from the Evaluation Committee on the secret services in line with the
Oversight Act;
·
To consider and
make recommendations on all legislation relating to the Services.
The successful completion of the planning session
had an immense contribution to the proper planning and the achievements of the
Committees oversight responsibilities as set out in the Intelligence Services
Oversight Act.
7.
RECOMMENDATIONS
Having performed all the Oversight activities as
mandated by the Intelligence Services Oversight Act (Act No 40 of 1994), the
Committee made the following recommendations:
·
There should be
greater coordination among ministries and departments in ensuring that
procedures on legal interception are adhered to in order to minimise any
possibility of abuse. This should apply in both domestic and international interceptions.
·
The Evaluation
Committee must table the report to the Committee as provided for in the
Oversight Act.
·
The Minister for
Intelligence Services must finalise all the regulations that are still
outstanding for the Services.
·
Regularise and
formalise the meetings of the Committee with the President. The same should
apply with the Presiding Officers.
·
That the
Government should move with speed towards the repeal of Act No 127 of 1992 and
ensure the full implementation of Act No 70 of 2002.
·
The
IGs
office must increase its capacity in areas of review
activities and issuing of certificates on annual reports of the Services.
·
The Services must
assist the ISC in ensuring that the consultative forums operate effectively.
·
Sanai
must finalise the process of
accreditation of all the courses offered at the college.
8.
CONCLUSION
Deriving
strength from its diversity, during the period under review, the Committee has
shown determination and dedication in executing its duties to ensure that a
culture of oversight is inculcated and embedded in the Committee and its
clients. Furthermore, investigations and requests have been done with the
necessary professionalism and precision, as was shown in the outcome of the
Browse Mole Report
investigations.
9.
GLOSSARY
CI
Crime Intelligence:
Division of the South African Police Services
CICF
Counter Intelligence
Coordinating Forum
Comsec
Electronic
Communications Security Pty (Ltd)
DCS
Department of Correctional
Services
DFA
Department of Foreign Affairs
DHA
Department of Home Affairs
DI
Defence Intelligence:
Division of the South African National Defence Force
DPSA
Department of Public Service and
Administration
EIA
Environmental Impact
Assessment
FIS
Foreign Intelligence Service
GIA
Geological Impact Assessment
IIRAC
International Intelligence
Review Agencies Conference
ISC
Intelligence Services Council on the Conditions of
Services
JCPSC
Justice, Crime Prevention and
Security Cluster
JSCI
Joint Standing Committee on
Intelligence
NIA
National
Intelligence Agency
Nicoc
National Intelligence Coordinating Committee
NSC
National
Security Council
OIC
Office for Interception
Centres
Sanai
SAQA
South
African Qualifications Authority
SASS
South African Secret Service
VFU
Vetting
Fieldwork Unit
ANNEXURE
A
Available from the Office of the Clerk of the Papers
ANNEXURE
B
Summary of the
report by the office for the control of interception and monitoring of
applications ITO Act No 127 of 1992
The last report presented by the Committee covered the period May 2006 to
30 April 2007. The current report covers the period 1 May 2007 to 25 April
2008.
|
|
SAPS
|
NIA
|
SASS
|
DSO
|
|
Total no of applications
|
96
|
109
|
6
|
10
|
ANNEXURE
C
Programme of the
JSCI in the reporting year 2007
18 Jan
07
Meeting with the
relevant Ministers on interception of communication
07 Feb
07
Briefing by
Secretary for Defence
21 Feb
07
Briefing by
Inspector-General on regulations and certification
28 Feb
07
NIA and the
spending agencies: Budget hearing
01 Mar 07
Meeting
Norwegian Parliamentary Standing Committee on Scrutiny and Constitutional
Affairs (visiting Parliament of RSA)
07 Mar 07
Briefing
by Crime and Defence Intelligence on Budget & Strategic plans
09 Mar
07
Briefing by SASS
on Budget and Strategic Plans
14 Mar 07
Review
of 1
st
Term
Programme
and
finalisation
of 2
nd
Term draft
programme
6
12 May 07
Study tour visit
to
16
May 07
Briefing by
Nicoc
23
May 07
Briefing by
SASS
30
May 2007
Briefing by
Nicoc
06
Jun 07
Consideration
of JSCI Annual Report
01-
06 Aug 07
Oversight visit
to
Sanai
,
Defence
Intelligence and OIC
08 Aug 07
Meeting
with Judge for interception and briefing by SASS on the Browse Mole Report
10
Aug 07
Further
briefing on the special report
22
Aug 07
Meeting with
the Minister of Intelligence
28
Aug 07
Meeting with
the President of the Republic
12
Sep 07
Meeting with
DSO
13 Sep 07
Meeting
with Ministers of Intelligence and of Justice and Constitutional Development
19
Sep 07
Meeting with
the Ministerial Review Commission
Meeting with the Auditor-General
10 Oct 07
Briefing
by the Director‑General of Justice and Constitutional Development
11
Oct 07
Briefing by
Nicoc
16
Oct 07
Meeting with
the Minister of Safety & Security
17
Oct 07
Further consideration
of JSCI Annual Report
19
Oct 07
Briefing by
Defence
Intelligence
24
Oct 07
Briefing by
NIA
31
Oct 07
Meeting with
DSO
01 Nov 07
Meeting
with interception of communication stakeholders
07 Nov 07
Briefing
by Auditor-General
Briefing by Inspector-General
14 Nov 07
Briefing
by NIA
16 Nov 07
Briefing
by SASS
21 Nov 07
Briefing
by Crime and
Defence
Intelligence
12 15
Jan 08
Strategic Planning
Workshop
23 Jan 08
Consideration
of Strategic Workshop resolutions by the Committee
06 Feb 08
Meetings with
Comsec
, Minister of Intelligence and the DG NIA
13 Feb 08
Briefing by
Nicoc
27 Feb 08
Meeting with the Judge for
Interception of communications
29 Feb 08
Meeting with
Comsec
and briefing by the Ministerial Review Commission
05 Mar 08
Budget hearings NIA and
spending agencies
07 Mar 08
Crime Intelligence Budget
Briefings
12 Mar 08
SASS and DI Budget
Hearings
19 Mar 08
Briefing by
Nicoc
19 Mar 08
Briefing by Adv
Mpshe
on
Browse Mole
media statement
(b)
Annual Report of
the Joint Standing Committee on Intelligence (JSCI) for the financial year
ended 31 March 2009, as agreed by the JSCI on 12 May 2010 and submitted in
compliance of section 6 of the Intelligence Services Oversight Act, No 40 of
1994:
MEMBERS OF THE JSCI
National
Assembly
Mr CV Burgess
Chairperson (current)
ANC
Mr S Abram
ANC
Mr L Landers
ANC
Mr I
Vadi
ANC
Ms MP Mentor
ANC
Ms HC
Mgabadeli
ANC
Mr D
Bloem
(until March 2009)
ANC
Mr MJ
Bhengu
IFP
Adv P Swart
DA
National
Council of Provinces
Mr LM
Mokoena
ANC
TABLE OF
CONTENTS
1.
Introduction
2.
Accountability and oversight
3.
Legislative
responsibilities of the Committee
3.1
Reports from the Auditor-General (AG) on
the Services
3.2
Recommendation to Joint Rules Committee
3.3
Recommendations on legislation relating
to the Services
3.4
Investigations and referrals done by the
Committee
3.5
Special Report of the JSCI
3.6
Recommendations on
interdepartmental co-operation and coordination of intelligence
3.7
Reports from the Secret
Services Evaluation
Committee on
the Secret Services Account
3.8
Reports from the Judge responsible for the issuing of
directions as defined in section 1 of the Interception and Monitoring
Prohibition Act, 1992 (Act No 127 of 1992) and Act No 70 of 2002
3.9
Consideration of Reports and Certificates issued by the
Inspector‑General of Intelligence
4.
Intelligence structures
4.1
National
Intelligence Agency (NIA)
4.2
Intelligence
Services Council (ISC)
4.3
National Communications Centre (NCC)
4.4
Office for Interception Centres (OIC)
4.5
Electronic Communications Security Pty
(Ltd) (
Comsec
)
4.6
South
African
National
Academy
of Intelligence (
Sanai
)
4.7
South
African Secret Service (SASS)
4.8
Defence
Intelligence (DI)
4.9
Crime
Intelligence (CI)
5.
International relations
6.
Other activities of the
Committee
7.
Recommendations
8.
Conclusion
9.
Glossary
Annexures
:
A.
Report from the AG on the
Services
(Available from the Office of
the Clerk of the Papers)
B
Annual Report of
Applications in terms of Act No 127 of 1992 and Act No 70 of 2002
C
Programme of the JSCI for the
financial year 2008‑09
1.
INTRODUCTION
Parliament has reached
the end of the 3
rd
Parliament (15 years) and is now preparing for
the commencement of the 4
th
Parliament. The Joint Standing Committee
on Intelligence was first constituted in 1995 and the Committee has been in
operation since. A new Committee will be constituted after the April 2009
general elections.
As an oversight body,
the Committee throughout its
tenure,
has had some
achievements and challenges. Some of the achievements of the Committee include
two Special Reports tabled by the Committee to Parliament. These are the
Special Report on the e-mails investigation that was conducted by the Office of
Inspector-General and the Special Report on the Browse Mole Consolidated Report
of the DSO (Scorpions). All these reports were tabled before Parliament as open
reports and made accessible to the public.
The Committee has
witnessed the birth of
Comsec
in terms of the
Comsec
Act. It has grown and now operates at almost full
capacity. Likewise the office of the Inspector-General of Intelligence (IG)
started from scratch and now functions effectively as an oversight structure
for the intelligence community.
Since the formation of
the Committee, the Ministry of Intelligence Services has been under the
leadership of the late Minister D Omar, the late Minister J
Nhlanhla
,
Minister L N
Sisulu
, Minister R
Kasrils
and currently Minister S C
Cwele
. Over the period of
its existence the Committee has been chaired by Hon L N
Sisulu
,
Hon N
Nqakula
, Hon S C
Cwele
and currently Hon C V Burgess. The meetings of the Committee are generally not
open to the public and the Intelligence Services Oversight Act, No 40 of 1994,
guides its operations.
In the 3
rd
Parliament the membership of the Committee was constituted of four political
parties represented in Parliament, the African National Congress, the
Democratic Alliance, the Independent Democrats and the
Inkatha
Freedom Party. The Committee has been able to rise above any party politics
while focusing on its oversight mandate. Therefore decisions of the Committee
are generally reached through consensus. Furthermore debates and discussions
focus on ensuring that the oversight work of the Committee is done in line with
the Oversight Act.
In the reporting year,
Judge Swart was appointed as the judge responsible for the consideration of
applications for interceptions of communications by the Law Enforcement
Agencies. A detailed report on the statistics as issued by the judge is
discussed in this report.
Moreover, in the
reporting year, the Minister of Intelligence Services, Mr R
Kasrils
,
resigned and Hon S C
Cwele
, who was the Chairperson
of the JSCI, replaced him. Hon C V Burgess was appointed as the new Chairperson
of the Committee.
The Committee through
its oversight work has been receiving briefings on the preparedness of the
country to host three major upcoming
events,
these are
the National General Election to take place on 22 April 2009, the
Fifa
Confederations Cup to take place in June 2009 and the
2010
Fifa
Soccer World Cup. The Committee is
satisfied that these events will proceed as planned. The Committee also
received a focused briefing on the situation in
2.
ACCOUNTABILITY AND
OVERSIGHT
The Committee has oversight over
the following structures:
·
National Intelligence Agency (NIA)
·
South African Secret Service (SASS)
·
The Crime Intelligence (CI) Division of the South
African Police Service (SAPS)
·
The Defence Intelligence (DI) a Division of the South
African National Defence Force
·
The
·
Electronic Communications Security Pty (Ltd) (
Comsec
)
·
National Intelligence Coordinating Committee (
Nicoc
)
·
Office for
Interception Centres (OIC) and
·
The Intelligence Services Council on the Conditions of
Services (ISC)
In performing its oversight function, the JSCI
is supported by the following structures that are accountable to the Committee:
·
The Ministers of Intelligence, Defence and Safety and
Security;
·
The Auditor-General;
·
The Inspector-General of Intelligence; and
·
The Judge designated in terms of the Regulation of
Interception of Communications‑related Information Act, No 70 of 2002.
3.
LEGISLATIVE
RESPONSIBILITIES OF THE COMMITTEE
The JSCI has a statutory mandate. This is set
out in the Intelligence Services Oversight Act, No 40 of 1994, and involves a
number of duties and functions.
3.1
Reports from the Auditor‑General (AG)
on the Services
One of the functions of the Committee as outlined
in Section 3 of the Oversight Act, No 40 of 1994, is to obtain an audit report
from the AG compiled in accordance with section 22 of Public Audit Act, No 22
of 2004. After obtaining the report the Committee must consider and report to
Parliament on:
·
the financial
statements of the Services, the Academy and
Comsec
;
·
any audit issued
on those statements; and
·
any
reports issued by the
Auditor‑General on the affairs of the Services and the Intelligence
Services Entities.
The Committee received a briefing from the AG on
the annual financial statements of Civilian Intelligence Services, Crime
Intelligence and Defence Intelligence. The reports of the AG (date 17 November
2008) identified certain challenges facing the Intelligence Agencies and
Services. (The reports of the AG are marked Annexure A and are available from
the Office of the Clerk of the Papers.)
3.2
Recommendations to Joint Rules Committee
The Oversight Act
provides that the JSCI may consider and recommend rules to assist it in its operations.
Rules were indeed prepared and adopted by Parliament on 13 March 2008. However,
some of these rules require amendments to the Act before implementation. This
particularly applies to the appointment of an acting Chairperson.
The rules do not adequately
cover staff‑related matters and this has interfered with the work of the
Committee. In this regard it is noted that staff designated by the Speaker and
Chairperson of the NCOP generally have permanent service contracts while
members of staff who come from Agencies under the control of the Minister
normally have short-term contracts and are seconded to the JSCI.
3.3
Recommendations
on legislation relating to the Services
An Ad Hoc Committee on
Intelligence Legislation was established in June 2008 to consider and
facilitate proposed legislation. The Ad Hoc Committee comprised all the members
of the JSCI and other members from the National Assembly and the National
Council of Provinces. The Ad Hoc Committee prioritised the facilitation of all
three Bills that were put before it for consideration.
The three Bills were:
Protection of Information Bill [B28 2008]; Intelligence Services Amendment
Bill [B37 2008] and National Strategic Intelligence Services Amendment Bill
[B38 2008]. After thorough consideration and receiving comments
from the public, the Ad Hoc Committee decided to
refer the Bills back to the Ministry for further consideration. However, the
Minister decided to withdraw all three Bills. The Bills covered important and
necessary legislation. The JSCI trusts that these Bills will soon be
reintroduced to Parliament after considering the necessary concerns
raised
.
3.4
Investigations
and referrals done by the Committee
According
to Section 3 (f) of the Intelligence Services Oversight Act, No 40 of 1994, the
Committee may order an investigation by the Inspector-General or the Head of a
Service regarding any complaint received by the Committee from any member of
the public regarding anything, which such member believes that a Service has
caused harm/damage to that members property. The Committee must be satisfied
that such complaint is not trivial or vexatious or made in bad faith.
The
JSCI requested the assistance of the AG in respect of a sensitive project that
has been carried out by the DI. In addition to the assistance given by the
Office of the AG, the Committee carefully monitored the developments of DI
relating to this sensitive project. The AG has presented a final report to the
JSCI and the Committee has accordingly prepared a Special Report, which will be
referred to the President for consideration
The JSCI has also
completed its investigation into the huge escalation in the building costs of
Comsec
new offices. In this regard the Committee once again
relied on the kind assistance of the AGs office. The Committee also
interviewed a number of the staff of
Comsec
. The JSCI
has prepared a Special Report relating to this matter. This
Comsec
Special Report will also be sent to the President and then tabled before
Parliament.
3.5
Special Report of the JSCI
In the previous years
Annual Report, the JSCI tabled a Special Report relating to the investigation
done by the Governmental Task Team in respect of the Browse Mole Consolidated
Report manufactured by the DSO.
The Committee notes
with concern that no action has been taken by the Executive arising out of the
Special Report of the JSCI, which was adopted by Parliament and involved the
investigations that followed the leaking of the Browse Mole Consolidated Report
of the DSO (Scorpions).
3.6
Recommendations on interdepartmental
co-operation and coordination of intelligence
The National
Intelligence Co-ordinating Committee (
Nicoc
) is made
up of the Heads of Intelligence Services.
Nicoc
still does not
have approved regulations for the coordination of intelligence. This matter
still concerns the Committee, particularly since there have been ongoing
challenges with regard to coordination.
In its 2005‑06 annual report the Committee
raised its dissatisfaction regarding the lack of approved regulations for
coordination and the impact this could have on the quality of intelligence.
Nicoc
is currently forming a subcommittee for the drafting
of regulations and the JSCI welcomes the initiative.
However, in trying to assist
Nicoc
with coordination, the Committee has previously resolved that:
·
all
briefings done by
Nicoc
are done in the presence of all
Nicoc
principals and not only by the
Nicoc
coordinator.
·
the
Committee will
monitor the Services through, briefings, annual budgets and reports to make
sure that the challenges facing the coordination of intelligence are addressed.
·
the
JSCI will drive
all role players in intelligence to discuss the issue of coordination seriously
to strengthen
Nicocs
capacity and its products.
Generally the Committee has noted with interest
the successes of coordination in the Services in their involvement in assisting
the South African Government in its African peace missions. The JSCI welcomes
these successes and would like to encourage the Services to use these achievements
to improve all areas of coordination.
Nicoc
also plays an
important role in formulating the National Intelligence Estimates (NIE). The
NIE is strategically an important document, which guides the Services in
fulfilling their mandates and is
key
when considering
our National Security priorities.
3.7
Reports from the Secret Services Evaluation Committee
on the Secret Services Account
In terms
of the Intelligence Services Oversight Act, No 40 of 1994, the President
appoints the Evaluation Committee whose function is to determine the adequacy
of the Secret Services budgets.
According
to section 3(a
)(
ii) of the Act the Committee is to
obtain from the Evaluation Committee a report on the Secret Services budgets
and intended Secret Services expenditures, evaluated and reviewed by it,
together with any comments or recommendations which the Evaluation Committee
may deem appropriate.
The JSCI
has never met with the Evaluation Committee, nor has the Committee received any
report. This relationship needs to be regularised and strengthened. Immediate
attention should be focused on addressing this concern.
3.8
Reports from the Judge responsible for the issuing of
statistics as defined in the Regulation of Interception of Communications and
Provision of Communication-Related Information Act, No70 of 2002, and Act No
127 of 1992
In the reporting year, Act No 70 of 2002 came
into full operation, thereby repealing Act No 127 of 1992. The Chairperson of
the Committee met with Judge Swart who is responsible for the issuing of the
directions in accordance with the Act. Due to the tight parliamentary
programme, the meeting with the Judge took place at the Judges offices in
The Judge issued the statistics, which covers
the period for the present financial year. The Judge has also advised that his
office and all Law Enforcement Agencies are now operating using Act No 70 of
2002. All the applications that reached the Judges office after June 2008 were
submitted in accordance to this Act. The Judge further indicated that the
previous Act was uncomplicated yet sufficiently broad as compared to the new
Act (Act No 70 of 2002), which in his view was more complicated. He however
emphasised the fact that his office was coping and complying with the new Act.
In the reporting year, the Judge received
complaints from two telephone and cell phone operators about the fact that
police were requiring real-time information from them, which by then was
already forwarded to the OIC. The police had also indicated that they were not
getting this information in the required format from the OIC hence they
approached the service providers.
The Judge raised a concern with the Chairperson
that he is still receiving applications and affidavits which are faxed copies
and not
originals,
this was due to the fact that it
was not practical for him to request original papers in all cases before he can
grant the approval.
The statistics are attached as Annexure B.
3.9
Consideration of Reports and Certificates
issued by Inspector-General of Intelligence
In terms of section 7(11)(d) of the Intelligence
Services Oversight Act, No 40 of 1994, the Joint Standing Committee on
Intelligence must receive from the Inspector-General on Intelligence Services:
(
i
)
A report on the activities of each
Service or Agency for the preceding 12‑month period; and
(ii)
A certificate stating the extent to which the
Inspector-General is satisfied with that report and whether anything done by a
Service or Agency in the course of their activities during the preceding 12‑month
period is unlawful or contravenes any directions issued by the relevant
Minister or involves an unreasonable or unnecessary exercise by that Service or
Agency of its powers.
A number of concerns have been raised in the reports
and annual certificates of the Inspector-General. The JSCI has been briefed and
has given it due consideration. These concerns relate to matters such as:
·
the development
of an integrated border security strategy together with the required capacity
and resources;
·
the effectiveness
of existing guidelines and mechanisms to facilitate operational and strategic
co-ordination of intelligence;
·
the impact of
overlapping mandates in respect of duplication of operations and targets within
the intelligence community;
·
progress on the
shared Services dispensation;
·
the value and
quality of specific intelligence products;
·
the expansion of
foreign intelligence liaison structures;
·
gaps in the
regulatory and statutory framework governing signals intelligence;
·
enhancing the
capacity of lawful interceptions and infrastructure in the monitoring of
targets;
·
the adequacy of
resources and the status of crime intelligence personnel at station and cluster
levels;
·
personnel
shortages experienced by SANDF DI; and
·
challenges
related to the
conduct and provision of intelligence and counter-intelligence support to SANDF
operations.
4.
INTELLIGENCE STRUCTURES
4.1
National Intelligence Agency (NIA)
The functions of the NIA are set
out in the National Strategic Intelligence Act, No 39 of 1994, and are
essentially:
·
to fulfil a
proactive or early warning role of scanning and assessing the total domestic
security situation to identify and report to the policy maker or executive
departments any signs or warning signals of threats or potential threats;
·
to play an active
role in tracking events when a threat or a crime has been identified, without
duplicating the role of other executive departments;
·
to provide an
integrated, multi-analytical, strategic, projective assessment of patterns,
trends and security relevant issues; and
·
to
perform effective security
screening of government personnel.
During
the year under review, the Committee interacted with the NIA and received
briefings on their Annual Report for the financial year. Some of the aspects on
which progress has been made as per their objectives are:
·
the establishment of Vetting Field Work
Units (VFU) in certain state departments;
·
securing of national events;
·
participation in structures in preparation
for the 2009
Fifa
Confederations Cup and the 2010
Fifa
Soccer World Cup; and
·
the establishment of an ICT security centre
of excellence
However,
the JSCI expressed its concern about low staff morale among the NIA personnel.
Also the high number of personnel on sick leave and the number of resignations
was a concern.
4.2
Intelligence Services Council (ISC)
Section 22 of the Intelligence Services Act, Act No 65 of
2002, as amended, sets out the functions of the Intelligence Services Council,
which are:
·
to make recommendations to the Minister on
the development of policies on conditions of service and human resources matters;
·
to make recommendations to the Minister on
improvements of salaries and fringe benefits of members on an annual basis;
·
to promote measures and set standards to
ensure the effective and efficient performance and implementation of policies
on human resources within the Academy or the Intelligence Services, as the case
may be, and to make recommendations thereon to the Minister.
The Minister for Intelligence Services tasked the ISC to
formulate a proposal to review the efficiency of policies and the mechanism to
monitor the implementation of such policies within the Civilian Intelligence
Services.
The ISC conducted a statistical review on gender equity and
submitted a report with recommendations to the Minister for Intelligence
Services indicating the status, progress and challenges faced by the Civilian
Intelligence Services in 2006.
The JSCI had previously shown concern that the consultation
mechanism set up to regulate the relations between Management and the Staff
Councils appeared to be in crisis. It is for this reason that the JSCI insisted
that effective consultation between the ISC, Management of the Civilian
Intelligence Services and Staff Council is critical. It is therefore important
for all the parties to render their cooperation so that the formulation and
implementation of policies on the Conditions of Services and other HR related
matters could be effectively addressed.
4.3
N
ational Communication Centre (NCC)
The
NCCs
mandate as approved by Cabinet in
April 2000 is to establish the National Communications Centre, to establish a
single signals intelligence capacity encompassing national communications
collection for the protection of the interest of National Security. This
mandate involves the interception of bulk cross-border communications signals
that can be processed into intelligence products that will support the domestic
and foreign policy initiatives of Government.
During the year under review, the NCC reported that Mr
Jhatham
Mohamed, who had been the
NCCs
Head
had resigned and Mr
Loyiso
Jafta
had replaced him.
Presently the NCC still operates under ministerial directives. This is
as a consequence of the intended legislation being withdrawn by the new
Minister. The Bill was aimed at regulating the functions of the NCC.
4.4
Office for Interception centres (OIC)
The
Committee met the OIC in the year under review in
·
slow responses
from the service providers (sellers);
·
high volumes of
requests received from the Scorpions for training;
·
slow progress in
the procurement of Internet Protocol;
·
unstandardised
formatting of
warrants; and
·
lack
of feasibility studies to
verify telephone numbers forwarded to them for interception.
However, the OIC regarded the following as positive
turnarounds:
·
their systems
have now been upgraded;
·
OIC is now a
National Key Point;
·
ability to use
Digital Certificates, which were received from
Comsec
;
and
·
they
are now able to interact
with all role-players,
eg
Icasa
.
The OIC sought support from the Committee to proceed
with the feasibility of using an electronic system of processing interception
warrants. This involved submitting electronic applications to the Judge and the
Judge issuing electronic warrants. The OIC is running a pilot project.
The incoming Committee must carefully monitor this
development since in as much as it may be effective if successfully
implemented, it will have financial implications.
The Committee notes with concern that the OIC still
does not have a Disaster Recovery Centre (DRC) in place. It is critical that
this impediment be sorted out immediately.
4.5
Electronic Communications Security (
Comsec
)
The purpose of
Comsec
is
to ensure that electronic communications infrastructure of all organs of state
are protected and secured. When approving the 2005 2008 business
plan
for
Comsec
, the Minister
directed the entity to focus on research and development of secured
communication products.
Given its mandate
Comsec
continues to face certain challenges that if not addressed will affect the
entitys ability to fulfil its mandate.
The
Committee has in its previous annual report reflected on the concerns the JSCI
have about the building project for the new offices of
Comsec
.
The Auditor-General submitted an audit report to the Committee, and emanating
from the audit report, the Committee requested further information from
Comsec
.
There
was very little cooperation from the previous CEO of
Comsec
regarding queries related to the building project. Consequently a comprehensive
Special Report was compiled on the irregularities pertaining to the
construction of the building. Notwithstanding the above,
Comsec
moved into its new building in 2008.
4.6
The Academy was established as an organisational
component in terms of the Public Service Act, 1994 (Proclamation 103 of 1994),
of which the Management and Administration fall under the control of the
Minister.
The Academy:
·
must provide
training for persons in, or conduct such examinations or tests as qualification
for appointment, promotion or transfer of persons in or to, the intelligence
service or departments, as the case may be, as the Minister may prescribe;
·
may issue diplomas
or certificates to persons who have passed such examinations or tests;
·
may corporate
with any institution of higher learning, in the Republic or elsewhere, to
achieve its objectives;
·
must
ensure that the
accreditation and recognition of the Academys qualifications are done in
accordance with provisions of the South African Qualifications Authority Act,
1995 (Act 58 of 1995).
The Committee expressed its concern over the case of
the Chief Financial Officer that has taken too long to resolve. To date the matter
is before court and accordingly unresolved.
In the reporting year
Sanai
has made the following progress:
·
forged effective
partnerships with foreign intelligence services (FIS) in the benchmarking of
training programmes;
·
collaboration
with NIA on the 2007 FTP, Surveillance Training Programme, Internal Security
and Analysis Simulation;
·
increasingly
active participation of experts from line management in curriculum development,
standard setting and training;
·
developing
partnerships
with external institutions and government departments.
·
construction of
new library and multi-media centre;
·
refurbishment of
the training centre; and
·
establishment
of + Bid
Committees.
The Auditor-General also raised some concerns
regarding
Sanai
and this includes the fact: that the
opening balance on prior year did not correspond with statements of guarantees
from the bank; the Academy has not implemented effective internal control for
management of inventory; the Academy did not take adequate steps to ensure that
all monies due from resigning employees are adequately recovered. However,
Sanai
undertook to remedy the situation.
4.7
South African Secret Service (SASS)
The mandate of the South African Secret Service is
derived from section 2(2) of the National Strategic Intelligence Act, No 39 of
1994. The functions of the Service, subject to section 3 of Act No 39 of 1994,
are:
·
to gather,
correlate and analyse foreign intelligence, excluding military intelligence in
order to identify any threat or potential threat to the security of the
Republic or its people;
·
supply
intelligence relating to any such threat to
Nicoc
;
·
to institute
counter intelligence measures within the Services; and in consultation with the
Agency, counter-intelligence measures outside the Republic; and
·
to gather
departmental intelligence at the request of any interested department of state,
and, without delay to evaluate and transmit such intelligence and any other
intelligence at the disposal of the service and which constitutes departmental
intelligence, to the department concerned and to
Nicoc
.
SASS made a presentation to the Committee on 19
November 2008 and emphasised the following:
·
a number of their
members have undergone training;
·
a project was
initiated to develop a defined organisational culture for the Service which
will continue into the new business year;
·
there has been
growth in both the volume and quality of output which is ascribed to improved
quality control process, better staff development and limiting intelligence
mandates to priority countries;
·
the size of
Security Service operations abroad and the capacity to vet DFA officials before
taking up foreign posts has increased; and
·
the
Audit Report for the 2007-08
has been reported as excellent.
In respect of the East Wing building, which had collapsed,
SASS reported that they have instituted legal proceedings against the
contractor for poor workmanship, the engineer for poor designs and also taken
action against the architect. SASS has engaged the services of a legal firm to
act on their behalf in these legal proceedings. The incident is most
unfortunate and the JSCI should continue to monitor the progress of the court
proceedings in this matter.
4.8
DEFENCE INTELLIGENCE (DI)
The JSCI has previously raised its concerns about
the continuous loss of staff of DI. While the Committee acknowledged the
success of the capacity‑building programmes for personnel at DI, which
produced highly skilled staff, the JSCI felt it is important for DI to
strengthen their retention strategies in order to minimise the loss of staff.
The key reasons for the loss of staff have been identified.
This problem appears to be developing into a major
crisis because personnel that are leaving are generally highly qualified.
The JSCI
has also established that many of the staff members have also been poached by
other government departments. In this regard the JSCI has recommended that the
DI enter into a Memorandum of Understanding with other government departments
in order to prevent staff losses.
However,
the JSCI has continually been briefed by the DI that the salary scales of their
members, given their expert qualifications, are simply not in line with market
related factors. The Committee notes that this is a serious challenge that
needs to be addressed as a matter of urgency.
The JSCI welcomes the achievements and future plans
that DI has made on ABET programme for staff that do not possess formal
educational qualifications. The Committee believes that an intervention such as
this not only develops capacity of staff but also motivates them to work harder
and have higher levels of work ethics.
The DI
is presently stationed in an old building, which does not meet the required
criteria needed for their offices. The Committee was informed that the process
to relocate has been drawn out and frustrating due to strict procurement
requirements.
4.9
Crime Intelligence (CI)
The key objective for Crime Intelligence is to
contribute to the neutralisation of crime by gathering, collating and analysing
intelligence information that leads to an actionable policing activity.
In line with their operational plan for the period
under review, CI implemented the following measures:
·
aligned
(re-aligned) the gathering and analytical (tactical)/ operational as well as
strategic capacity personnel/ resources on national, provincial and station
level, with focus areas in plan;
·
developed
collection priorities and collection requirements/intelligence in terms of
focus areas;
·
maintained
verified threat/risk analysis in terms of focus area;
·
developed individual/
organisational/ group and activity profiles and threat assessments on various
threats/ focus areas;
·
initiated
training programmes to ensure that all personnel are properly trained; and
·
sustained
operational
intelligence support to operational clients as well as the provision of
strategic intelligence products to relevant clients.
CI advised the Committee that the successful
implementation of the strategic and resultant operational plans would determine
the extent to which Crime Intelligence had reached its objectives.
It should be noted that while the Division Crime
Intelligence is primarily accountable to the SAPS and to the Department of
Safety and Security, it also has a particular responsibility to the broader
intelligence community and to
Nicoc
. Accordingly this
places additional demands on Crime Intelligence.
Other matters relating to CI appear in the
Auditor-Generals annual report for the period under review, which is available
from the Office of the Clerk of the Papers as Annexure A.
5.
INTERNATIONAL RELATIONS
Following
the Committees visit to
The
objectives of the Swedish visit were:
·
to conduct an oversight study tour; and
·
to
interact with the JSCI and obtain assistance in establishing a Swedish
oversight structure.
The JSCI
was able to assist the delegation on all aspects of their requests. Reports
received from our embassy in
In the
year under review the International Intelligence Review Agencies Conference
(IIRAC) conference was held in
Whose
interest and what interests the overseers and reviewers (hereafter collectively
reviewers) exist to protect or facilitate-
a)
Those of the
executive government in attaining national interest and security;
b)
Those of the
public as a whole, who share government interests and have an interest in how
they are achieved;
c)
Those of
individual residents who may become a target as a source of trouble or as an
unwilling source of information;
d)
Those of intelligence services
themselves which may be assisted in preserving the integrity of the
operation.
The JSCI
sent a delegation to participate in the conference. Other participants from the
South African Intelligence Oversight structures included a delegation consisting
of IG and members from his office.
All the
participants at the conference serve on some form of oversight structures in
their respective countries. The interaction between the JSCI and other
countries represented at the conference has greatly increased our understanding
of the role and importance of oversight in civilian intelligence structures.
The next
IIRAC conference will be hosted by
6.
OTHER ACTIVITIES OF THE JSCI
On 27
November 2008 the Committee conducted a special oversight visit of DI,
Comsec
and the OIC.
DI
The
Committee received a final briefing on the sensitive Consolidated Project
Flute.
Comsec
The aim
of the visit was to check the quality of the workmanship of the new
Comsec
building. The Committee was not impressed by the
quality of the workmanship on the building. The Committee was subsequently
informed that there were serious structural problems with the building in
respect of leakages and ventilation. These defects will require further funds,
adding to the escalation in costs of the building.
OIC
The
Committee met the officials of the OIC in
The
Committee was not satisfied that the OIC was operating at an optimum level.
Management was requested to present a detailed report to the JSCI on plans to
address the challenges identified. Arising from this report, the JSCI must
continue to closely monitor the implementation of these plans.
7.
RECOMMENDATIONS
Having performed all the oversight activities as
mandated by the Intelligence Services Oversight Act, No 40 of 1994, the Committee
wishes to make the following recommendations:
·
the JSCI must
ensure that the meeting with the President is made a standing item on the
programme of the Committee for every financial year;
·
the Committee
should meet regularly with the National Security Council;
·
the Minister for
Intelligence Services should finalise all the regulations that are still
outstanding relating to the Services;
·
there should be
greater coordination of Intelligence training in the Services which must be
monitored effectively;
·
documents in the
JSCI cannot be removed and so dedicated time for members to familiarise
themselves with these documents needs to be set aside;
·
draft legislation
that was withdrawn by the Minister should be reintroduced in the next term;
·
the Services must
address the concerns identified by the IG and report thereon to the JSCI; and
·
other
concerns of the JSCI
relating to the Services must be attended to immediately.
8.
CONCLUSION
The work of the JSCI has come to an end with the
finalisation of this report. In order to allow for consistency and particularly
continuity, the Committee has assisted the staff in preparing a report on the
critical areas of the Committee, which should be carried over to the new JSCI,
which will constitute itself after the April 2009 elections. Hopefully this
report will help both the staff and the new Committee to prepare a strategic
programme, which will continue from where this Committee left off.
Moreover, the JSCI has made many recommendations in
its numerous reports, which has as yet not been considered or implemented by
those to whom it was directed. Certainly these matters must be monitored and
acted upon.
The work of the Committee is stressful and requires
dedication and commitment. The Members have often to meet as a JSCI at odd
times and places on very short notice.
The Committee wishes to thank the staff for their
contribution to making the work of the JSCI possible and successful. Equally
the Members of the Committee should be praised for their effort. The JCSI has
moreover, built up sound relationships with all of the Agencies and other
oversight structures like the IG and office of the AG and their effort in
enhancing the necessary cooperation needed by the JSCI is noted and sincerely
appreciated.
9.
GLOSSARY
CI
Crime Intelligence:
Division of the South African Police Services
CICF
Counter Intelligence
Coordinating Forum
Comsec
Electronic
Communications Security Pty (Ltd)
DCS
Department of Correctional
Services
DFA
Department of Foreign Affairs
DHA
Department of Home Affairs
DI
Defence Intelligence:
Division of the South African National Defence Force
DPSA
Department of Public Service and
Administration
EIA
Environmental Impact
Assessment
FIS
Foreign Intelligence Service
GIA
Geological Impact Assessment
IIRAC
International Intelligence
Review Agencies Conference
ISC
Intelligence Services Council on the Conditions of
Services
JCPSC
Justice, Crime Prevention and
Security Cluster
JSCI
Joint Standing Committee on
Intelligence
NIA
National
Intelligence Agency
Nicoc
National
Intelligence Coordinating Committee
NSC
National
Security Council
OIC
Office for Interception
Centres
Sanai
SAQA
South
African Qualifications Authority
SASS
South African Secret Service
VFU
Vetting Fieldwork Unit
ANNEXURE
A
Available from the Office of the Clerk of the Papers
ANNEXURE
B
Summary
of the report by the office for the control of interception and monitoring of
applications ITO Act 127 of 1992 and Act 70 of 2002
The last report presented by the Committee covered
the period 1 May 2006 to 30 April 2007. The current report covers the period 1
May 2008 to 31 March 2009.
|
Requesting Agency
|
Approved Requests
|
Declined Requests
|
Total
|
|
SAPS CI
|
84
|
14
|
98
|
|
NIA
|
63
|
7
|
70
|
|
DSO
|
13
|
1
|
14
|
|
SASS
|
6
|
1
|
7
|
ANNEXURE
C
Programme
of the JSCI in the reporting year 2008
12 15 Jan 08
Strategic
Planning workshop
23 Jan
08
Consideration of
Strategic Workshop Resolution
06 Feb
08
Meeting with
Comsec
, Minister of Intelligence and DG NIA
13 Feb
08
Briefing by
Nicoc
27 Feb 08
Meeting
with the Judge of Interception
29 Feb 08
Meeting
with
Comsec
and Ministerial Review Commission
05 Mar 08
NIA
Budget hearings
07 Mar 08
Crime
Intelligence Budget hearings
12 Mar 08
SASS
and DI Budget hearings
19 Mar 08
Briefing
by AG on DI final report
Briefing
by
Nicoc
and response from Adv
Mpshe
on Browse Mole Consolidated Report
07 May 08
Informal
briefing on Protection of Information Bill
14 May 08
Consideration
of JSCI Annual Report
21 May 08
Briefing
by
Nicoc
03 June 08
Meeting
with Minister and Secretary of Defence
20 Aug 08
Briefing
by
Nicoc
on Challenges, Progress and the Role of
Coordination Units
10 Sep 08
Briefing
by
Nicoc
on Stability in the SADC region
04 05 Nov 08
JSCI
hosted Swedish Intelligence delegation
17 Nov 08
Presentation
on Intelligence Services by AG
18 Nov 08
Workshop
with the Ministry of Intelligence on Oversight Mandate Duplication and
Deliberation of outstanding JSCI reports
19 Nov 08
Presentation
by NIA Spending Agencies on financial statements
27 Nov 08
Visit
to OIC, DI and
Comsec
by JSCI
21 Jan 09
Meeting
with DI and
Comsec
04 Feb 09
Meeting
with DG NIA and CI Commissioner
11 Feb 09
Meeting
with
Nicoc
18 Feb 09
Meeting
with IG on certificates of the Services
03 Mar 09
Consideration
of JSCI Annual Report,
Comsec
and DI sensitive report
Documents
No related documents