Vague intelligence law amendments open door to ongoing abuse by State Security Agency

7 Dec 2023

Inspector-General of Intelligence Imtiaz Fazel has told MPs the proposed intelligence law overhaul should strengthen oversight of South Africa’s intelligence services.

Proactive lawmaking would not only include better definitions, including of intelligence and intelligence-gathering, but would also make the Inspector-General of Intelligence’s (IGI’s) recommendations binding, IGI Imtiaz Fazel said in Parliament on Thursday.

“In our most recent report, we made 234 findings on all the intelligence services that were accompanied by 130 recommendations. These recommendations as well as findings were subject to consultations with heads of services and the respective ministers... There is no reason the recommendations should not be implemented,” Fazel said.

“In the absence of implementation, the oversight would become irrelevant, really.”

That matters are dire emerged in a quip from the chairperson of the General Intelligence Laws Amendment Bill (Gilab) ad hoc committee, Jerome Maake: “All recommendations are not accepted.”

It may have been tongue in cheek, but the comment emphasised the disjunct of agreeing to something but not implementing it — effectively just ticking boxes. That something may be recommended but not implemented highlights a failure to ensure accountability and redress, given South Africa’s blanket approach to secrecy in anything related to intelligence.

The 2018 High-Level Review Panel on the State Security Agency (SSA) was sharply critical of the unnecessary levels of secrecy. This was linked to the abuse of finances, intelligence inquiries and operations, which was worsened by the politicisation and factionalism of intelligence services. The criticism was echoed by the 2021 Sandy Africa panel on the July 2021 violence, the Zondo Commission and also by official intelligence scrutiny such as the 2008 Matthews Commission.

Reduced oversight

MPs were given a rare glimpse into the spooks’ smoke-and-mirror world on Thursday when they were told how the IGI already in 2008 recommended tighter regulation of bulk interception to ensure constitutional and statutory compliance.

In 2021, the landmark Constitutional Court amaBhungane judgment declared bulk interception unconstitutional, finding that foreign bulk interception — effectively the monitoring of all internet traffic — violated privacy provisions. It took until November 2023 for this to be addressed in the General Intelligence Laws Amendment Bill, which proposes bulk interception monitoring by a judge and two advisory bulk interception experts, as well as the establishment of a separate national bulk interception centre.

The twist, however, is the SSA-drafted legislation now removes oversight of such bulk interception from the IGI.

“The current Gilab further limits the autonomy of the [intelligence] inspector-general,” Fizal said.

While submitting proposals to improve the Gilab overall, and specifically the IGI provisions, MPs were also told the Office of the IGI was undertaking an organisational overhaul. This could see the IGI becoming an independent Schedule 3 entity similar to the Competition Commission and Commission Tribunal — independent, but under the umbrella of a department.

It would resolve the issues of the IGI depending on the SSA for its money, and for the appointment of even a cleaner for the Office of the IGI.

In that the IGI is not alone: the National Intelligence Coordinating Committee (Nicoc) brought similar issues to the Gilab ad hoc committee. Even though, unlike the IGI, Nicoc had been invited by SSA to make proposals, on Tuesday it was clear these had been ignored.

“In my office, I can’t even approve a PA; it must go to Musanda [SSA HQ]... They overrule my decision [even though] they are far lower in rank,” Nicoc coordinator Ambassador Gab Msimanga told MPs.

“Ideally, we would be independent — also on budget.”

Spies at odds

Nicoc proposed that the SSA must supply it with intelligence. This signals ongoing factionalism and division within the intelligence services, never mind financial and administrative malfeasance.

In 1994, Nicoc was envisioned as the coordinating hub between domestic intelligence and defence and police intelligence. It was meant to collect, collate and analyse national strategic intelligence — and bring to the attention of the Cabinet any possible threats to national security.

But intelligence services fractured in the factional jockeying in the governing ANC ahead of the Polokwane national conference in 2007 that chose Jacob Zuma as party president over Thabo Mbeki, and during the State Capture years.

In the official turn to increasing securocrat security architecture, Nicoc still exists, and its coordinator serves in the secretariat of directors-general supporting the National Security Council that President Cyril Ramaphosa reestablished in February 2020.

The government’s security cluster includes not only the SAPS, military and intelligence, but also the National Treasury and the ministries of home affairs, international relations, cooperative governance, police, defence and justice.

Much of what the so-called security cluster decides is steered by NatJoints — the National Joint Operational and Intelligence Structure — co-chaired by the SAPS and SSA, that brings together spooks, soldiers and police in a structure that’s not established in law or regulation and does not account to Parliament, or anywhere else.

During the more than 720-day Covid-19 lockdown, NatJoints had a central role in Cabinet decisions like bans on the sale of sandals, roasted chicken, alcohol and cigarettes.

NatJoints is involved in energy supply security as much as security at events like the recent BRICS Summit that was held in Johannesburg.

Threat of vagueness

In the absence of a publicly known national security strategy — the one promised for public consultation by July 2022 has yet to surface — it is possible for the Gilab to include not only threats, but also “opportunity of threats” and significantly expand what those include.

And so, the SSA drafters included “any activity that seeks to harm the advancement and promotion of equality and equitable access to opportunities” and “any activity that seeks to harm the advancement and promotion of peace and harmony and freedom from fear and want for South Africans” as national security threats.

The language is expansive and fudgy — it opens the door to powers that are not exactly written down, but arise as possible because of the vagueness of words. For example, “screening” as it was known in 2002, became “vetting” in 2013 and now in the Gilab it’s “security competence assessment”. In 1994, vetting was not yet an obsession; today vetting, or security competence assessment, is no longer a may, but a must.

Read more in Daily Maverick: Wavering hostile interests definition, security threats signal possible overreach in state intelligence legislation

The final intelligence amendment law depends how parliamentarians decide to incorporate into the Gilab not only proposals from the IGI, Nicoc or police Crime Intelligence, but also public comments and the input from public hearings scheduled for early next year in the Western Cape, KwaZulu-Natal, Limpopo, Mpumalanga and Gauteng.

The briefings by SSA, Nicoc, SAPS Crime Intelligence and the IGI over three days took place in a weirdly chummy environment with insider jokes and hints at what was discussed at the Joint Standing Committee on Intelligence (JSCI), Parliament's oversight committee that always sits behind closed doors.

All but two members of the Gilab ad hoc committee also serve on the JSCI. Those who appeared before MPs were informed the meeting was public. Despite some discomfort, it seemed to be a continuation of the cosy familiarity of almost five years of meeting regularly behind closed doors at Africa House, the former British high commission on the parliamentary precinct, where apparently no one without top security clearance crosses the doorstep.

But as Fazel told MPs on Thursday, “Intelligence on its own is an undemocratic practice. It needs functions in a system of checks and balances, including oversight.” DM

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Reduced oversight

Spies at odds

Threat of vagueness