General Intelligence Laws Amendment Bill [B25-2011]: concerns raised during public hearings

Meeting report

The Chairperson noted the apologies of Mr J Maake (ANC), Mr N Fihla (ANC) and Mr D Stubbe (DA).

The Committee was established in 2011 to process the General Intelligence Laws Amendment Bill.  The Bill was not finalised before the extended term of office of the Committee expired on 8 June 2012.  A resolution was passed by the House on 7 November 2012 to re-establish the Committee.  The Committee was required to report to Parliament on the Bill by 28 March 2013.

The Committee had received nine written submissions from the public on the Bill by the closing date 16 March 2012.  Public hearings on the Bill were held on 28 March 2012.  The Committee’s last meeting was held on 20 April 2012.  The Committee had invited the Minister of State Security to respond to the issues raised during the public hearings on the Bill.

Briefing by the Minister of State Security
Honourable Siyabonga Cwele, Minister of State Security, congratulated the Committee on its re-appointment.  The finalisation of the General Intelligence Laws Amendment Bill had taken longer than expected and he expressed the hope that the Bill would be finalised in the near future.  The Bill was not intended to introduce extensive legislative changes.  Amendments to the State Security Act would be tabled at a later stage.

The Bill was intended to establish a legal standing for the changes made to the intelligence services during 2009.  The intelligence services comprised Crime Intelligence, Defence Intelligence and State Security as well as the National Intelligence Agency (NIA), the South African Security Service (SASS), the South African National Academy of Intelligence (SANAI), the National Communications Centre (NCC) and Electronic Communications Security (Pty) Ltd (COMSEC).  The National Intelligence Coordinating Committee (NICOC) was established to coordinate the operations of the various intelligence entities.  The intention was to consolidate the various entities into a single department.  The Audit Committee had raised concerns over the legal basis for a consolidated financial statement and the Minister of Finance had requested that a consolidated financial statement was issued.

Minister Cwele limited his response to the issues raised during the public hearings on the Bill to the two matters that would allow the Committee to finalise the Bill, i.e. the amendments concerning COMSEC and NICOC.  The other issues were better dealt with in the subsequent State Security Amendment Bill.

The functions of COMSEC were transferred to the Department of State Security and the State Security Agency (SSA).  The coordination of intelligence functions was critical.  The proposed amendments were intended to address current issues in the existing intelligence structures and to define the collation of intelligence as an activity.

The current intelligence structure had resulted from the negotiated settlement (introduced in 1994).  The new White Paper on Intelligence would reflect policy changes over the subsequent 19 years.  In order to speed up the finalisation of the Bill, the amendments concerning NICOC would be removed.  Other issues raised by Members had been responded to during previous meetings of the Committee.

Discussion
The Chairperson advised that Minister Cwele would be invited to provide a more detailed briefing to the Committee on some of the issues that had been identified.

Mr F Bhengu (ANC) wanted to know when the Minister would present the briefing and when the changed Bill would be introduced.

Minister Cwele advised that the briefing on the changed Bill could be presented to the Committee at the meeting scheduled for the following week.

Mr D Maynier (DA) understood that certain amendments concerning NICOC would be withdrawn from the Bill.  He asked for details of the changes that would be made and the reasons for the changes.  Amendments concerning NICOC were not mentioned during the public hearings and were not regarded as contentious by the Committee.  He suspected that the issues concerning NICOC had arisen in the Joint Standing Committee on Intelligence (JSCI).  He was concerned that a parallel process concerning the proposed legislation was taking place in the JSCI.

Ms H Mgabadeli (ANC) objected to Mr Maynier’s statements concerning the JSCI.

The Chairperson pointed out that the Minister was not introducing amendments to the Bill during the current proceedings.  The Minister had merely referred to certain matters that could be taken up by the Committee.  The Committee would not anticipate what would be dealt with in the future briefing by the Minister.  He asked that suspicions concerning the proceedings of the JSCI were left in abeyance.

Mr Maynier clarified that his concern was based on the fact that issues concerning NICOC had not been a major point of concern to the Committee during previous discussions.  In his opinion, the proposed changes concerning NICOC made sense.

Mr Bhengu advised that the ANC had considered issues of policy and technicality and had engaged with the Minister on these matters.  He disagreed that the matter concerning NICOC had not been discussed.

Mr A Maziya (ANC) objected to the implication that the Minister had been ‘dictated to by the JSCI’.  He pointed out that the Bill would be dealt with by the Ad Hoc Committee and not by the JSCI.

Minister Cwele responded that did not wish to prescribe to the Committee.  His interaction on the Bill was with the Committee rather than with members of the public.  The Bill had not been referred to the JSCI by the Committee.  Should the Bill be referred to the JSCI, he would be happy to interact with that Committee and explain the Bill to its Members.  He was reluctant to respond to suspicions about the proceedings of another Committee.  The intention was to remove provisions in the Bill that were considered to be reflections of major changes in policy.  The changes to the proposed legislation arose out of previous discussions with the Committee but were not critical to the functioning of the Department.  He explained that there were challenges with the wording in the current legislation.  It would be necessary to reach agreement with the Parliamentary and State Law Advisers that the proposed amendments did not represent any changes in policy.  The main purpose was to rationalise, coordinate and consolidate all intelligence functions under a single department and to reduce the bureaucracy and duplication caused by a burgeoning corporate services section.  There needed to be less focus on corporate services and more effort into the collection of intelligence.  The issue had been discussed by previous Ministers of Finance and Intelligence but some of the initiatives had been unsuccessful.  There were no malicious intentions or attempts to introduce policy changes under the guise of legislative changes.

Minister Cwele summarised the issues concerning NICOC that needed to be addressed.  These issues included the appropriate forum where the intelligence product should be tabled; who should appoint the principal officer; what the reporting lines should be and whether NICOC should reside within the ministry or be an independent entity.  Other issues concerned departmental intelligence gathering and what intelligence product should be released to the public.  The following briefing to the Committee would include more information on the positions, functions and organisations that would be abolished.

The Chairperson advised that the Committee had agreed a programme for dealing with the Bill on 21 November 2012.  The previous meeting had been on 20 April 2012, when the Minister’s refusal to respond to the issues raised during the public hearings on the Bill was debated.  Members wanted to hear the response from the Minister, hence the invitation to address the Committee.  The Minister should be allowed the opportunity to have his say.  He did not regard comments regarding NICOC by other entities as material.

Mr Maynier was of the opinion that the changes that would be made to the Bill concerning NICOC represented a ‘tactical retreat’ by the Minister.  The motivation for the changes was not clear.  The Minister had not yet responded to the substantive matters that had been raised in the public hearings regarding the broad mandate of the SSA and the gathering of foreign intelligence.  He asked if the Minister intended to brief the Committee on the issues raised by the public and deal with each issue in a substantive manner.  The changes concerning NICOC and COMSEC were minor matters and the major concerns that were raised by the public had not been dealt with.

Minister Cwele cautioned against basing legislation on emotional responses.  The major consideration was the safety and security of South Africans.  The new White Paper on Intelligence would clarify current Government policy and the State Security Amendment Bill would exclude any vague policy provisions.  The legislative programme arose out of the findings of various commissions of enquiry and the experience gained since the current White Paper was formulated almost twenty years earlier.  The issues raised by the public were not ignored but he felt that the concerns had been addressed and did not require a further response.  The Department respected the basic human rights enshrined in the Constitution.  He reiterated the historical basis for the current intelligence dispensation and reminded Members of the role of Parliament in protecting the country against threats to its security.  The changes to the proposed legislation would not be based on new policy, despite the current weaknesses.  Certain interim measures had been implemented.  A more detailed response would follow at the appropriate time.

The Chairperson gave the assurance that the Committee would ensure that the legislation would conform to constitutional requirements.  The Constitution recognised the need to infringe on certain fundamental rights under exceptional circumstances.  Section 36 of the Constitution made provision for the limitation of certain rights.  The Committee would decide whether or not the powers and functions of the SSA were appropriate and would ensure that proper consultation took place.

Mr M Sonto (ANC) suggested that Mr Maynier and the Minister discussed differences in opinion outside the proceedings of the Committee.

Ms Mgabadeli asked if the revised Bill would be introduced during the following week.

Mr Maynier wanted to discuss another key issue that was raised during the public hearings but Mr Sonto called a point of order.  The Minister should be allowed the opportunity to first present his response to the issues arising from the public hearings.  Mr Maziya supported Mr Sonto’s position.

The Chairperson ruled that discussion on the matters raised during the public hearings would be deferred until the Minister had the opportunity to present his response to the Committee.  He accepted Mr Maynier’s offer of providing the Committee with a list of the issues that could be forwarded to the Minister.

Mr Maynier understood that the JSCI would provide the Committee with a report on its discussions on the Bill.  He suggested that the Inspector-General of Intelligence was invited to present her views on the Bill to the Committee.  He asked for a copy of the regulations on the interception of foreign signals that he understood had been issued.

Ms Mgabadeli also served on the JSCI and objected to the Ad Hoc Committee concerning itself with the proceedings of the JSCI.

The Chairperson pointed out that the resolution to re-constitute the Committee made no reference to the JSCI.  He asked Members to refrain from drawing the JSCI into the deliberations on the Bill.  Ms Mgabadeli’s concern was therefore not relevant.

The Chairperson thanked the Minister and officials of the Department of State Security for their attendance.  He advised that the adoption of the minutes of the previous meeting of the Committee was postponed to the following meeting.

The meeting was adjourned.