Long overdue intelligence oversight report comes as controversial spook law awaits presidential pen

Every year before the end of May, Parliament’s Joint Standing Committee on Intelligence (JSCI) must release its report on the activities of the State Security Agency (SSA) and Defence and Crime Intelligence from the preceding financial year.

This hasn’t happened, it emerged in news reports and, crucially, also before the Zondo Commission of Inquiry into State Capture, which was scathing in finding the JSCI lacked oversight vigour.

That even in the wake of such Zondo Commission findings the JSCI failed to timeously publish its annual reports as required under the Intelligence Services Oversight Act, raises questions of quality, relevance and oversight.

These JSCI reports are meant to provide a public glimpse into and hold to account the intelligence services, which have been repeatedly slammed as too secretive, mismanaged and politicised in the 2018 High-Level Review Panel on the SSA, and again in the May 2022 report by the Sandy Africa panel into the July 2021 unrest.

But the secrecy continues.

All three intelligence services received qualified audits, but the rands and cents of the SSA’s irregular expenditure — and also fruitless and wasteful expenditure — are redacted, it emerges from the 2022/23 JSCI report.

Also redacted are performance indicators and targets, even if the JSCI report states it sent back the SSA annual performance plans due to vagueness and failure to properly link indicators and outcomes.

With eight days to go before the current term of Parliament ends on the eve of elections, the JSCI has yet to publish its 2023/24 report from 1 April 2023 to 31 March 2024. If it does not do so, the committee fails in its statutory obligations.

But this JSCI report leaves parliamentary oversight on the troubled intelligence services ineffective and out of date.

The report published in Parliament’s Announcements, Tablings and Committee Reports talks of plans for the General Intelligence Laws Amendment Bill (Gilab) to be tabled in Parliament in November 2022, but the National Council of Provinces passed the controversial bill on 16 May.

As it turned out, Gilab arrived in November 2023, not 2022, due to ministerial tabling mishaps. But the legislation took an unusually short six months to be adopted in both Houses of Parliament despite lawmakers facing significant civil society and other opposition.

Separating the domestic and foreign SSA branches, as the 2018 High-Level Panel recommended, the public hearings crucially raised shortcomings over Gilab as it allowed the SSA expanded vetting, overbroad definitions on, for example, national security, failure of mechanisms to ensure the SSA implemented the recommendations of the Inspector General for Intelligence (IGI), and the fudginess on updating interceptions, including bulk interception that tracks internet traffic.

Interceptions were fundamentally changed in the 2021 landmark amaBhungane judgment that ruled unconstitutional parts of the Regulation of Interception of Communication and Provisions of Communication-Related Information Act (Rica), including bulk interceptions, ordered greater independence for the so-called bugging judge, who authorises interceptions, and post-surveillance notification, particularly of journalists and lawyers.

President Cyril Ramaphosa is still sitting on the Rica Amendment Bill that Parliament’s justice committee drafted in line with the Constitutional Court ruling — no interceptions may happen outside Rica — more than five months after Parliament passed this legislation.

Unlawful interception

Meanwhile, the JSCI report annexure from the interception judge, retired Constitutional Court Judge Bess Nkabinde, raises red flags on communication surveillance: “(My) office receives various complaints by certain individuals and requests on behalf of entities suspecting that their private communication is being unlawfully monitored. In my view, this brings to light some of the challenges regarding the effectiveness of the intelligence regulatory oversight. I think that the time has come for the complete reform of surveillance regulatory measures. I am of the view that Parliament should think outside the box.”

Nkabinde’s report showed 159 interception applications were received in the 2022/23 financial year, with all but one from the police. The SSA applied for only one interception renewal, indicating the amaBhungane judgment’s post-surveillance notification was a major challenge.

“The post-notification provision is considered as compromising the agency’s classified investigation, making it difficult to do that secret work.”

Nkabinde’s report and recommendations for out-of-the-box law-making became public days after Gilab was passed by the Ncop and sent to the President for enactment into law. The law-making process would have been enriched by such comments from the coalface of intelligence gathering.

Instead, questions remain as to whether the Gilab ad hoc committee, predominantly JSCI members, drew on input from Nkabinde and others. The final version of the law indicates it did not.

Gilab would still allow “intelligence services to monitor, en masse, the communications of every South African, and to do so behind a veil of secrecy in the name of national security”, said Intelwatch, a civil society organisation for public oversight over state and private intelligence, in its 10 May submission to the NCOP as it discussed this legislation.

“The bill does not provide sufficiently for the independence and powers of the IGI, JSCI and AG (auditor-general). This is despite the findings of the 2018 HLRP (High-Level Review Panel Report) and the State Capture Commission that both the JSCI and the IGI, for various reasons, failed to provide sufficient oversight, and despite years of qualified audits from the AG.

“Currently, the legislation is such that the IGI in particular lacks the independence required to truly bring intelligence community members to book when they commit transgressions. The JSCI and AG’s shortcomings have greatly exacerbated this situation.

“Factors that contribute to the malfunctioning of and malfeasance in South Africa’s intelligence community must be addressed by the bill”.

Four working days later, Gilab was adopted in the Ncop without even the changes parliamentarians wanted, such as a deputy IGI. These were kicked into touch for a possible new law in the next Parliament after elections.

Minister in the Presidency, Khumbudzo Ntshavheni, who is responsible for the SSA, said she’d oppose such an amendment as it was a substantial change.

By the time Gilab passed the Ncop hurdle, Intelwatch’s caution over too much being left to ministerial decree, and thus beyond public accountability and input, seemed to be unexpectedly supported.

In late March, Ntshavheni hailed intelligence coordination regulations on a video clip, to off-camera applause. But these regulations, which “seek to regulate the production and dissemination of strategic intelligence for use and consideration by the Cabinet and the executive”, were never actually published; only a notice of their commencement, marked confidential, appeared on 12 April 2024 in the Government Gazette.

At least when ex-State Security Minister Siyabonga Cwele published regulations on hiring, firing and conditions of employment on 29 January 2014, the actual regulations were published.

Security shrouded

This example of regulations underscores two points — the far reach of ministerial say in the intelligence services, and the continuing, some would argue, deepening veil of security.

The JSCI report signals parliamentarians’ reluctance to push boundaries in the interest of public accountability and transparency. Stating the rands and cents of the SSA’s irregular, fruitless and wasteful expenditure would not endanger operations, but would show a commitment to clear up what the High-Level Panel Report called excessive secrecy.

While the JSCI report maintained the committee did “continuous monitoring”, in response to the scathing Zondo Commission findings, that seemed to be mostly about holding more meetings behind closed doors, and a study tour to the UK and Canada.

Or, as the report put it, “the JSCI resolved to hold the executive accountable through its various mandated functions and ensure adherence to laws and good governance over public funds.

“The JSCI intensified its functioning by convening more meetings, analysing and synthesising documents presented to the JSCI, briefings on matters arising from analysis.”

Everything and anything, except insisting on transparency and openness on non-operational matters — in public. And that’s a disservice to South Africa given the extensive powers of intelligence services, the least of which are wiretaps and surveillance of private persons. DM