Parliament, Friday, 8 March 2024 – The Ad Hoc Committee on the General Intelligence Laws Amendment Bill today received inputs from the Parliamentary legal advisor on the State Security Agency’s (SSA) responses to the public participation process on the Bill.
In relation to the SSA’s assertion that proposals in section 7 9(a) of the Bill, which call for the Office of the Inspector-General of Intelligence’s recommendations to be binding, could expose the IGI process to legal challenges, the committee heard that the Joint Standing Committee on Intelligence (JSCI) exercises oversight over the intelligence services and is best placed to ensure the implementation of the IGI’s recommendations/corrective measures.
The legal advisor proposed that the section be amended to read: “the Services must show cause/provide reasons as to why they have not complied with the findings and recommendations of the IGI.” The legal advisor said the latter could be time-bound to ensure action is not postponed indefinitely.
The committee was further advised to follow the 2006 and 2008 review report recommendations and the findings of the High-Level Panel Report relating to the independence of the IGI, as no legal reasons have been proffered to support why the IGI must continue to operate as an extension of only one intelligence service when it is constitutionally required to oversee all of them.
On the independence of the IGI, the committee was advised that the IGI is a constitutionally envisaged civilian oversight structure, which should function independently of the intelligence services over which it has oversight. The IGI is not an extension of the SSA and should not be under the control and direction of the executive. The IGI accounts to Parliament for all the exercise and functions of its powers. This mechanism ensures that whilst the IGI functions independently, there is also accountability for its work.
On the provision relating to the scope of briefing the three arms of state on the impact of national security trends in South Africa, the committee was advised that the courts exercise a constitutional judicial function and receiving periodic intelligence briefings may be considered to interfere with the functioning of the courts. Additionally, the intelligence services already periodically brief the executive (in the form of the Minister) and the Speaker of the National Assembly (through the JSCI) and to add the judiciary may impact negatively on the constitutionally sanctioned impartiality of the courts.
On the issue of the National Intelligence Coordinating Committee (NICOC), the committee was advised that the High-Level Review Panel recommended that NICOC should be relocated to the Presidency to give it the necessary authority to ensure the intelligence services comply with the prescripts of intelligence coordination. The SSA’s response does not give effect to this recommendation. It was also advised that to enhance the operational efficiency of NICOC and ensure that it is independent from other national intelligence structures, its budget may be appropriated by Parliament.
That committee was also advised that it is important to clarify in the Bill that vetting investigations will only apply to people in the employ of or applicants to an organ of state or institutions that render services to an organ of state, as contemplated in section 2(a) of the Act.
On the bulk interception function, the committee was advised that the details of what the application will entail should be contained in the Bill instead of the regulations, as proposed, in order to ensure that the process is transparent and there are sufficient safeguards against abuse. The safeguards would include the provision for procedural constitutional rights for those people whose rights may have been adversely affected by the conduct of bulk surveillance.
The committee will next week formally consider all inputs made and deliberate on the Bill clause by clause.
ISSUED BY THE PARLIAMENTARY COMMUNICATION SERVICES ON BEHALF OF THE CHAIRPERSON OF THE AD HOC COMMITTEE ON THE GENERAL INTELLIGENCE LAWS AMENDMENT BILL, MR JEROME MAAKE.
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Email: fndenze@parliament.gov.za
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