The State Security Agency (SSA) has made some key concessions on the provisions of a bill aimed at restructuring the intelligence service following objections made during public hearings particularly those related to overly broad definitions.
Minister in the presidency Khumbudzo Ntshavheni led a delegation of SSA officials to attend a meeting on Thursday of parliament’s ad hoc committee on the General Intelligence Laws Amendment Bill. The committee is due to begin deliberations on the bill on Friday.
The bill aims to give effect to some of the recommendations of the presidential high-level review panel on the SSA chaired by President Cyril Ramaphosa’s national security adviser Sydney Mufamadi, specifically regarding the separation of the domestic and foreign intelligence services. The establishment of a foreign-intelligence service (SA Intelligence Service) and a domestic intelligence agency (SA Intelligence Agency) is proposed in the bill.
The contentious clause in the draft bill, which would have required the vetting of NGOs and religious bodies, was removed from it some time back.
Concessions made by the SSA in a briefing by the agency’s deputy director-general Joyce Mashele related to the definitions of national security and persons or institutions of national security interest; the use of bulk interceptions; and the limitation of vetting procedures.
However, the agency did not fully accept proposals to bolster the independence of the Office of the Inspector-General of Intelligence (OIGI) and the National Intelligence Co-ordinating Committee (Nicoc) as they had requested during the public hearings on the bill.
The SSA accepted a proposed definition of national security which would exclude the words “potential opportunity” and “potential threat”, though intelligence agencies would still have a duty to forewarn and anticipate threats. It accepted the proposed definition as “the protection of the republic’s interests, citizens, institutions and sovereignty from internal and external threats as governed by the principles as set out in section 198 of the constitution”.
The bill defined national security “as the capabilities, measures and activities of the state to pursue or advance any threat, any potential threat, any opportunity any potential opportunity or the security of the republic and its people”.
The objection was that the inclusion of “potential opportunity or potential threat” in the definition of national security, critics said, was unconstitutional and was unworkable because it was ambiguous, overbroad and subjective and would be open to abuse which could result in the unreasonable and unjustifiable limitation of various fundamental rights. SSA accepted that this could be open to abuse.
The SSA also agreed to narrow the definition of persons or institutions of national security interest to exclude the reference to section 198 of the constitution which defines the principles governing national security. The objection was that the definition was overbroad and would include legitimate political activity by those wanting to seek a better life.
Vetting
With regard to a security competence test or vetting, the SSA accepted that this should be limited to individuals with access to classified information and critical infrastructure of the state The objection was that the definition in the bill was overly broad and would include those vulnerable to blackmail, undue influence and manipulation which could describe almost everybody without them being a threat to national security. Ntshavheni said the definition would be expanded to include vetting for threats to national security.
On bulk interception, the SSA said this would be exclusively limited to foreign jurisdictions and would not be directed at individuals or institutions in SA. The IGI would oversee this. The minister would introduce a bill to address the interception and surveillance of communications inside the country.
Bulk interception refers to the mass collection and analysis of data from various communications sources by intelligence services where there is no specific target. Critics expressed concerned about its potential for abuse and infringement on privacy and freedom of expression rights.
However, the SSA did not accept an IGI proposal that the IGI rather than the minister of state security in consultation with the IGI should have full control over the OIGI including the appointment of staff. Mashele said regulations would be drafted to ensure the standardisation of systems and processes and the delegation of authority to both the OIGI and Nicoc to ensure greater autonomy.
The SSA also did not accept that the Nicoc suggestion that the head of Nicoc with the approval of the minister must appoint members of support staff and that it should have its own budget.
Nicoc consists of the heads of various intelligence agencies, including those of SA Police Service (SAPS) and the SA National Defence Force (SANDF), which channel intelligence information on national security threats to it. Nicoc then briefs cabinet about this.
Mashele said the bill would make it obligatory for all national intelligence structures to supply intelligence to Nicoc.
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