General Intelligence Laws Amendment Bill: National Intelligence Coordinating Committee briefing

Meeting report

The Chairperson welcomed everyone present and announced apologies from the absent members.

National Intelligence Coordinating Committee (NICOC) Presentation
Ambassador Tony Msimangaa, Coordinator, NICOC, presented the organisation’s submission and indicated that it did not take the opportunity lightly. It had spent time interrogating the draft Bill with an emphasis on NICOC’s mandate. He quoted an observation from the 2018 High-Level Panel Review Report into the State Security Agency, which was led by Professor Sydney Mufamadi: “It is important to understand the crucial place that NICOC occupies in the overall intelligence value chain, at least as conceived by the founders of our constitutional democracy and post-apartheid intelligence dispensation. It is meant to be the key interface between the agencies that collect intelligence and the clients who need to make use of it, ensuring all source input into the intelligence picture, and effective processing and evaluation of the assessment – a product that goes to the policymakers.”

It is against this backdrop that the mandate of NICOC was either accepted, neglected, or undermined by proposals to reinstate the fundamental constitutional imperatives that were made to the draft bill. Our approach was not to tamper with the mandate and/or proposals by the SSA but rather to ensure that NICOC’s mandate was not fiddled with as well as to guard against the possible repeat of history albeit in the legislated manner this time around.

During the reign of the fourth administration, one Minister of Intelligence attempted to reduce NICOC into a unit in his office. This was illegal, the same illegal way that the SSA was created through a proclamation instead of national legislation. In this regard, NICOC did submit inputs to the SSA team that was working on the legislation. However, some inputs were omitted. Thus, his expression of gratitude for this opportunity is informed by the understanding that had we not been given an opportunity, some critical interventions in their inputs would not have been considered. We know and understand that the JSCI would like NICOC to have more powers in the national intelligence structures that do not comply with the legislative mandate.

He assured Members that once the process of regulation has been finalised, the entity will have the necessary legislative avenue to address matters of non-compliance. Some of the challenges faced by NICOC depend on who is in charge as a Director General who decides to give intelligence information to NICOC and at times they would withhold the information.

NICOC Submission on GILAB
Dr Ntandazo Sifolo, Head of Research and Analysis, NICOC, took Members through the entity’s proposed amendments to the Bill.

(See Presentation)

The Ambassador shared that at one point, NICOC was reduced to just a section in the Office of the Minister. If the Minister had the power, he could have dissolved the whole organisation because he wanted a select few people in his Office. It was important to ensure that history did not repeat itself, as when he was appointed as the Coordinator, he found NICOC in disarray. The first time he went to the JSCI, the committee members present told him they would kick him out and send him away like his predecessors. This was due to the past challenges that NICOC had faced, with ministers meddling and bringing in staff and dumping them in NICOC. Thus, it was critical for the future and stability of NICOC and the Office of Ambassador Msimanga that its functions and responsibilities remained intact, and no one could change NICOC's fate with a stroke of a pen. NICOC needs the support of the JSCI.

Discussion
The Chairperson welcomed the submission and asked about the difference between ring-fencing the NICOC budget and the Office of the Coordinator.

Ms D Kohler-Barnard (DA) said over the years, on numerous occasions, Members have called for various bits of regulations to strengthen the NICOC. These have been raised several times in the Committee, but do we have a list of proposals that we made to NICOC over the years? She believed that would assist the Committee a great deal because a lot of what has been said by NICOC is not far off from what Members had raised and discussed in their list of proposals.

It would be important to have a conversation with NICOC about some of its proposals and they have come up with more proposals over the years which should be run past NICOC.

The Chairperson noted the proposal.

Mr B Magwanishe (ANC) referred to the appointment of staff and sought clarity if it meant that the Minister would have to approve the appointment of PAs and most junior officers. He felt that these appointments could be left to the Coordinator. He did not understand why the Minister had to approve an appointment of PAs and junior staff members.

Mr D Stubbe (DA) thought the proposals were positive. Concerning the appointments, he felt that the process should be within Ambassador Msimanga and the Minister should be responsible for only approval.

Mr T Loate (COPE) also commented on the appointment of staff and said the word ‘may’ has been used. He wondered if there was a thought that word could lead to strong limitations in the exercise. If Ambassador Msimanga may determine it does not mean that he must determine.

The Chairperson agreed with the proposal because if the Minister appoints, he can also dismiss. He thought this was what was also happening in the Office of the IGI. It would pose a danger to NICOC if the Minister could come to NICOC and dismiss people.

Ms Kohler-Barnard asked NICOC why it did not use the word ‘must’ because it is attempting to strengthen itself, yet they are giving the Minister the final say in the matter. Ambassador Msimanga must determine the structure and the Minister can oversee it. Thus, the wording should be changed to must.

The Chairperson felt that was the Committee’s consensus. We must always go back to ask why we are doing this and we must not compromise on some of the issues. Members were all there and saw what happened and they must be firm on these proposals. 

Mr Stubbe commented on the function of the Agency and that the proposal is to insert supply intelligence regarding any such threat or opportunity to NICOC and it was earlier mentioned that some information would fall through the cracks and not go through NICOC, or it was rather kept from NICOC. He lambasted this practice and said that all agencies in the intelligence structure must supply NICOC with information or intelligence.

The Chairperson noted the proposal and said that the legal representatives can explain the issue of may and must. Secondly, he has always said that NICOC is like a baby without teeth and now they are trying to give NICOC some teeth.

Mr Masemola commented on the appointments and said that there is consensus that Ambassador Msimanga must appoint his staff, but the ideal situation is where NICOC has the final say on appointments, promotions, and demotions. Currently, NICOC can advertise a post, interview, and appoint but the final say will be within the SSA’s appointment board which may support or dismiss the appointment. Additionally, it is the same with performance and IPMS, NICOC can determine these on its own, but the final say or the ‘bell curve’ may be determined by the SSA. Top management at NICOC can determine who deserves the bonuses, but the final say is with the Accounting Officer. If NICOC gets these powers, it will assist a great deal.

There is an appointment board at SSA, which intends to look at the fairness of the process at Musanda (SSA headquarters) and extends to spending centres. NICOC’s human resource function is centralised at Musanda, and when NICOC provides a list of proposed appointed candidates, the board will have a final say and at times it would overrule the decision taken by NICOC. The people making these decisions are often not part of the recruiting panel at NICOC.   

Mr Loate said that in any given structure, senior people are the ones who evaluate the performance of their subordinates. Thus, he thought NICOC was saying the senior evaluates and someone else elsewhere makes a final decision although that person does not report to them.

Ambassador Msimanga said the situation is currently very problematic and abnormal. He is at the DG’s level, but in his office, he cannot even approve a Personal Assistant, which is done at Musanda. When posts are advertised, they are done so through Musanda. HR consultants from Musanda would come to NICOC and sit with the team and conduct interviews. Once the interviews are done, the team decides on the best candidates. When it goes back to Musanda PB (Placement Board), they can decide if they are not pleased with the recommendation or approval of Ambassador Msimanga and overrule his decision. These people are far lower in his rank – there would be assistant directors who sit on that board and overrule his decision. The same applies to the budget of his Office. This creates a lot of problems for NICOC and undermines the Office of the Coordinator.

The ideal situation is for NICOC to be independent even in determining its budget and appointing staff. Currently, everything is happening at Musanda and it is also dependent on who the DG is at the time.

Mr Magwanishe expressed his concerns over the appointment process. He cited an instance where a candidate was recommended by NICOC, but the board decided to appoint someone else. He felt that this could result in the candidate in question taking the government to court because the board was not part of the interviews, and thus, the decision was irrational and arbitrary. He believes that it only takes one such incident to land the government in trouble. He also mentioned the Arthur Fraser judgement where the Parole Board had recommended against granting parole, but Mr Fraser overruled it, which was found to be illegal by the court. Although the legal advisors can provide guidance, he believes that such actions could be dangerous.

Mr Stubbe recalled what Ms Kohler-Barnard mentioned earlier about the deliberations in the JSCI and how Members saw the way forward for NICOC and the Office of the Inspector General that they should be independent. The previous deliberations were accompanied by a list of proposals and some of those proposals could be included in NICOC’s submission to strengthen the Office of the Coordinator.

Ms Kohler-Barnard lambasted the SSA and said we have the tail wagging the dog and it is the same situation that the ICD (Independent Complaints Directorate) found itself in before it became the IPID (Independent Police Investigative Directorate). She wanted to know if there was some way to make the relevant changes and make a recommendation for the independence of NICOC until such time that legislation can be produced to make it fully independent. Juniors overriding a Director General is outrageous and unheard of. NICOC gave input to the SSA which then promptly removed it -this is gatekeeping and protecting the territory. Members must be mindful of this, and it cannot be allowed because it is also what the SAPS did with IPID previously.

The Chairperson said that Members are the ones that can come up with legislation. It is Members who can make it happen and NICOC can be invited to provide input. The High-Level Review Panel was completed in 2018. They were not even halfway in implementing the recommendations and Members must revisit the objective of its establishment. It is up to the Committee to make this work and it must take up the cause.

Mr Stubbe said that in deliberations, Members must assess how the suggestion fits in with their oversight role because there must be oversight. The oversight role is with the JSCI and we need to clear that out and where it fits in.

Dr Sifolo said that ring-fencing of the budget is still dependent on what Musanda wants if this is not legislated. This is also linked to the appointment of staff. Within the service there is a Ministerial delegation of power and direction of payment, so junior members in terms of rank are often appointed at a particular level such as M5 or M6 and Ambassador Msimanga is M6 in terms of the structure which means there are certain positions that he will approve without going to the Minister in terms of the practice of ministerial delegation of power. The senior positions are where they had hoped the Minister could be consulted and seek concurrence for approval. The Coordinator’s Office does not have legal expertise and relies on Musanda and occasionally you may not like what you receive and try to make sense of what is going on. The issue of may and must was also something debated by the team who assessed the inputs and they decided to allow the legal minds to explain this and they would not temper with it due to implications in the legal language. He expressed gratitude that the legal minds of the JSCI would be brought in to assist.

Ambassador Msimanga said that what has been proposed would assist in satisfying the Defence Intelligence and SAPS-CI because one of the challenges he found was the reluctance and they felt that NICOC is more like SSA as everything is done in Musanda. The issue of reluctance to supply the information, which was dealt with, was also based on that. these anomalies should be corrected so that it can be seen as a real Committee and that the Office of Ambassador Msimanga can make decisions including the appointments of staff.

Mr Magwanishe said that he was not comfortable with the response because it created legal uncertainty. It creates some discretion, and it has created a situation where it has been used in a manner that does not benefit NICOC. The law should be specific and there must be certainty in dealing with the appointment of staff in the Office of the Coordinator. This power must reside with the Coordinator, not the Minister.

Mr Loate suggested that ‘may’ could be replaced by ‘shall’. These words often disempower instead of strengthening the people who must account.

Mr Nathi Mjenxane, Parliamentary Legal Advisor said that he has noted the deliberations in the Committee and when providing advice for drafting will come up with the appropriate terminology to distinguish between what is obligatory and discretionary. Additionally, he noted the principle as agreed by the Committee presented by NICOC.

Some of the issues on independence touch on other legislation, which are not before the Committee, particularly on Financial Management and reporting. Time will be required to design the requirement to meet what is desired by the Committee.

The Chairperson noted the response and encouraged NICOC to write to the Committee if it felt that anything substantive needed to be inserted. He also appreciated how Ambassador Msimanga was not holding back and was transparent about what happens at NICOC.

Ambassador Msimanga thanked the Chairperson and Members and indicated that his Chief of Staff would correspond with the Committee if any substantive amendments needed to be made.

The Chairperson declared the meeting adjourned.