MPs pass legislation aimed at reversing the ‘intelligence evils’ of the Zuma era
The National Assembly has passed the General Intelligence Laws Amendment Bill with the support of all parties, bar one.
The bill seeks to undo the establishment of the State Security Agency (SSA), in line with the recommendations of the Sydney Mufamadi-led high-level review panel and to establish the SA Intelligence Agency. It will have a domestic focus and be responsible for counterintelligence and intelligence-gathering functions and an SA intelligence service responsible for foreign intelligence-gathering.
It also re-establishes the SA National Academy of Intelligence (SANAI), which is responsible for intelligence training and will provide a legislative mandate for bulk interception, in compliance with the Constitutional Court judgment and to provide a regulatory framework for compliance monitoring, co-ordination and alignment of intelligence activities.
It is also meant to provide for the regulation of cybersecurity, protection of information and intelligence, and to enable the minister responsible for intelligence to prescribe issues of accountability and control of intelligence services in line with section 209 of the constitution and to provide for matters related to former members of the intelligence services.
“We are here today to deal with a painful past, but we must speak the truth and nothing else but the truth,” said ANC MP Bheki Hadebe.
He outlined the history of the restructuring of the intelligence service by then president Jacob Zuma in 2009 and how this was deemed irregular by the highlevel panel as it fell outside the requirements of the constitution.
In 2009, the civilian intelligence services were restructured through a presidential proclamation, which led to the amalgamation of the National Intelligence Agency (NIA) and the SA Secret Services (SASS) into the SSA.
But in terms of section 199(4) of the constitution, the state and the president could restructure and regulate national intelligence only through legislation, therefore what happened in 2009 was irregular, said Hadebe.
The Mufamadi panel appointed by President Cyril Ramaphosa in 2018 found the amalgamation of the NIA and SASS to be “a monumental blunder” that did not achieve its stated intention but created more problems than it solved.
“The SSA became in effect a cash cow for many of its members and external stakeholders,” said Hadebe, quoting the panel’s findings. “Parallel structures were created directly to serve the personal and political interests of the former president, [and] in some cases, relevant ministers, that’s what went wrong.”
The panel, however, also noted that there were many things that were going right and many members who were doing their best in a difficult environment.
The panel recommended the SSA be separated into foreign and domestic services; that the minister’s powers be reviewed to avoid too much interference in the administration and operations of the state; and for the National Intelligence Co-ordinating Committee (Nicoc) to be relocated to the presidency.
The panel also recommended that further amendments be made to deal explicitly with illegal orders or the carrying out of unlawful orders and the issuing of illegal orders.
“It is clear and evident from the high-level review panel’s finding that accountability in the intelligence services was compromised,” said Hadebe.
“This bill aims to re-establish an accountable service, which is essential in a democratic context. It will ensure that ordinary South Africans receive a more accountable governance structure that spends its money and budget efficiently, accounts for its expenditure, executes its functions better, and assists the safety and security of South Africans.”
According to DA MP Dianne Kohler Barnard, the bill “is what is needed to reverse the evils of those truly awful years”.
“It installs safeguards to protect our democracy, and we have covered every conceivable base, guided by the numerous reports — wherein experts revealed the myriad shortcomings of mainly the SSA,” she said.
Kohler Barnard alluded to the fact that the joint standing committee on intelligence (JSCI) to which intelligence services account, has been asking the cabinet to produce the bill for eight years. She was addressing the view that the ad hoc committee had rushed the bill through parliament.
“Do bear in mind, this bill is needed to reverse some of the most egregious activities of those dark Zuma years when domestic and foreign intelligence had been irregularly lumped together and refocused to protect a single man rather than our country.
“What we have achieved here is to fix that and much, much more,” she said.
For example, the inspectorgeneral of intelligence (IGI), who performs oversight of the SSA, had staff appointed by the SSA, finances run by the SSA, and communications run by the SSA. Not any more, she said.
“So the JSCI — which comprises only DA and ANC members — put our foot down, announced we’d had enough in our February budget speeches, and proceeded to hand craft a committee bill.”
Kohler Barnard said when the allegedly leaked version of the cabinet bill made its way to an unsuspecting and immediately infuriated public, and when it was finally delivered to parliament, proposing, among other things, security vetting for church heads and heads of NGOs, the ad hoc committee received more than 23,000 submissions objecting to what cabinet proposed.
When the bill arrived in parliament, constitutional law advisers sent it back to have the offending clauses taken out, she said. “It came back, with those out but with an even broader and more egregious clause inserted, which gave the SSA free reign to spook whoever they wished, whenever they wished. They patently longed for the Zuma years — taking a big step towards a totally authoritarian state.”
But the committee removed all threatening, unconstitutional phrases and basically replaced them with those of its committee bill, she said. “We have gone through it word by word, checking and double-checking that each would pass constitutional muster, while equally allowing the various services to do their job of protecting the country.
“This is an elegant bill, worthy of this august house,” she said.
While supporting the bill and acknowledging that it seeks to fight the abuse of intelligence services, the EFF’s Mbuyiseni Ndlozi felt it was rushed through parliament.
“Nevertheless, there are three key substantial proposed amendments: securing the autonomy of the office of the inspector-general for intelligence, thus strengthening oversight on intelligence services; separation of the foreign and domestic branches of intelligence; and legalisation of bulk interception.
“The EFF is alive to the abuse that characterised our intelligence services in favour of fighting internal political factional battles within the ruling party as well as against opposition parties and civil society. Also, as key for the looting and corruption, particularly by top generals in the police and the army,” said Ndlozi.
He said at the centre of the abuse over the years has been a weak oversight capability for both the inspector-general of intelligence and JSCI.
“The proposed new laws regarding the appropriation budget of the IGA not being subject to SSA must be welcomed. We must further welcome the amendments that empower the IGI to determine its own organogram and be responsible for appointments of personnel working in it, which has been shifted from the minister.
“What is missing, however, is the binding effect of the findings of the IGI.”
Ndlozi said as ministers and heads of intelligence entities and services were still not bound to comply with findings of the inspector-general of intelligence it meant the inspector-general would continue to lack the necessary teeth.
“The IGI is key to the health, growth and sustainability of our democracy; it should be elevated to a chapter 9 institution.”
Ndlozi also proposed that as is the practice with the standing committee on public accounts (Scopa), which is chaired by an opposition MP, the JSCI would benefit if it were to be chaired by an MP not from the ruling party.
The African Christian Democratic Party was the only party that objected to the bill.
THE PANEL ALSO RECOMMENDED THAT FURTHER AMENDMENTS BE MADE TO DEAL EXPLICITLY WITH ILLEGAL ORDERS
WHEN THE BILL ARRIVED … CONSTITUTIONAL LAW ADVISERS SENT IT BACK TO HAVE OFFENDING CLAUSES TAKEN OUT