WRITTEN REPRESENTATIONS ON THE GENERAL INTELLIGENCE LAW

AMENDMENT BILL, 2003

 

This is a response to the issues raised in the Ad Hoc Committee on the General Intelligence Laws Amendment Bill briefing held on Friday, 12 September 2003. The response is for consideration by members of the Joint Standing Committee on Intelligence for purposes of deliberations in the Ad Hoc Committee.

National Strategic Intelligence Act, 1994.

  1. Clause 2 (a) " in the prescribed manner"

The intention of this clause is to clarify that the Minister for Intelligence Services may if she deems fit, issue regulations on how the security clearance should be conducted.

The executive has no intention of re-writing the clause to change Parliament’s intention giving the National Intelligence Structures the discretion to conduct security clearance to determine the security competency of an applicant or employee of an organ of the state.

We are inserting the words ‘prescribed’ to give the Minister the discretion to issue regulations on how the National Intelligence Structures should exercise their discretion to conduct security clearance.

Draft regulations on National Security Screening by the National Intelligence Structures were published in the Gazette for public comments in June 2003, in terms of section 6(1)(b) of the Act. They were published for public comments for +-5 weeks. We received no comments from the public. We are awaiting comments from the Ministries of Safety and Security and Defence.

In July 2003 Cabinet agreed on inter alia the following security matters:
  1. The capacity of the National Intelligence Agency to conduct Security clearance;
  2. the key posts that require clearances; and
  3. regulating the security clearance for Public Service employees as part of the contract of employment.

The essence of the decision is that the heads of organs of state, in particular government departments, should identify key personnel in their departments who require security clearance. This will help ensure that personnel ‘remote’ to security matters are not urgently subjected to security clearance but priority should be given to ‘risk personnel’, Senior Managers, personal staff of Directors-General and Ministers etc.

The Executive recognises that the National Intelligence Structures do not have the capacity to conduct security clearance of all applicants and employees of organs of state and therefore would through regulations of the Minister streamline the levels of personnel that have to be cleared.

Ideally, if the state had the capacity to conduct security clearance of every employee and applicant, everybody who has the probability of coming into contact with classified information, would be cleared as counter- intelligence measure. In this regard, section 2A will remain as is, as an expression of the ideal scenario, which cannot be met because of human and financial capacity constraints currently experienced by the National Intelligence Structures.

In light of these constraints, the National Intelligence Agency is re-writing Paragraph 4(1)(b) of the draft regulations, which reads: " The head of an organ of state shall-
  1. Ensure that all applicants and employees are security cleared to the relevant levels of classification",

to define who categories of employees and applicants that require immediate security clearance.

Intelligence Services Oversight Act, 2002.

  1. Clause 7 (c) on secondment of the member.

‘ (12A) The National Commissioner of the South African Police Services and the Chief of the South African National Defence Force may, if requested by the Inspector-General, second employees of the Service or the Force, as the case may be, to the office of the Inspector-General-
  1. In terms of the laws governing the secondment; and
  2. With his or her consent.’

 

Intelligence Services Act, 2002.

  1. Clause 11(a)

The meaning of immovable property.

The powers of the Minister in section 12 of the Act cannot be delegated in terms of section 13 of the Act. This is an administrative nightmare as for every transaction involving lease of immovable property and sale of movable property e.g old cameras, old computers, hiring of property for occasional operational purposes, etc, the Minister is required to approve. This does not only hamper speedy operational activities of the Services, but also draws the Minister to the day-to-day operational activities of the Services.These functions fall within the scope of powers of the Directors-General, who have to act within the provisions of the Public Finance Management Act, 1999.

However, we intended to restrict the acquisition and sale of immovable property only to the Minister and let the Directors-General exercise the rest of the powers through delegated authority by the Minister.

We propose the following clause:

"11. Section 12 of the Intelligence Services Act, 2002, is hereby amended by the substitution in subsection (2) for paragraphs (a), (b) and (c) of the following paragraphs, respectively:
    1. acquire [ or hire] any immovable property, with or without any buildings thereon, which is necessary for the efficient functioning of the Intelligence Services or the Academy, and erect or maintain any buildings on the property so acquired and [, with the concurrence of the Minister of Finance,] supply guarantees, indemnities and securities for those purposes;
    2. sell or otherwise dispose of any immovable property, with or without any building thereon which is no longer required for the said purpose;
    3. acquire [ and ] hire or utilise any movable property and any other equipment which may be necessary for the efficient functioning of the Intelligence Services or the Academy;
    4. [ with the concurrence of the Minister of Finance,] sell, let or otherwise dispose of [ any immovable property, with or without any building thereon, and] anything referred to in paragraph [b] c, which is no longer required for the said purposes."

 

 

The Public Finance Management Act, 1999 spells out the procedure for acquisition and disposal of assets by government departments. Despite the deletion of the " concurrence of the Minister of Finance", from section 12 of the Principal Act, the Public Finance Management Act, 1999, require the involvement of the Minister of Finance in these transactions. It can therefore be argued that reference to the Minister of Finance in the Principal Act is a duplication of the requirements of the Public Finance Management Act, 1999.

The Cabinet Memorandum was circulated to all Ministers and departments for comments by employees who advise Ministers. Cabinet, representative of all Ministers, including the Minister of Finance approved the Amendment Bill.

Accordingly, there will be a consequential amendments in clause 13 of the Bill (s20 of the Principal Act) by excluding section 12(1)(a) and (b) from delegation.
  1. Clause 12 (e) Panel of Appeal. Why do we need this?

    2. The Intelligence Services are excluded from the application of the Labour Relations Act, 1995. The structures like the Commission on Conciliation Mediation and Arbitration are not accessible to the members. When the dispute cannot be resolved internally a member seeks redress from courts of law.

    Although we are hardly involved in litigation we are not immune from it. We believe that an Appeals Panel will help afford fair and just administrative justice to aggrieved employees. This is also imperative in those structures not excluded from the Labour Relations Act, 1995, like the South African Police Service and South African National Defence Force, for security clearance matters, for example we believe that harsh administrative action like dismissal and demotion requires transparent adjudication.

  2. Clause 14 (c)

Why should the report be referred to the Minister of Public Service and Administration?

The Public Service Commission has the Constitutional authority to monitor and oversee the administration of all government departments including the National Intelligence Agency, South African Secret Service and the South African National Academy of Intelligence.

Over the years, the Commission has not been monitoring the Intelligence Services consistently because these Services have in addition to the Public Service Act, 1994, their own legislation that govern or regulate their organisation and administration. The Public Service Act only applies to the Intelligence Services to the extent that its provisions are not in conflict with the provisions of the Intelligence Services Act, 2002 (and previously the 1994 Act).

The reason for the inconsistent monitoring of the Services by the Commission is rooted on the fact that the Intelligence Services are a security service, excluded from the Labour Relations Act, 1995,and therefore there is sensitivity by oversight structures not to have a free hand on security matters.

Therefore in most instances the Commission would go out of its way when there is a need for reporting by the Services to allow an explanation by the Services that they cannot provide information to the Commission because of the sensitivity of the information. Although this understanding by the Commission has never been abused, it is acknowledged that evading accountability to the Commission by the Services does not only undermine public accountability by Public Administration but may be viewed to be unconstitutional.

In 2001, the Minister for Intelligence Services in consultation with the Minister of Public Service and Administration commissioned a review of the administration of the Services.

The review led to the approval by the two Ministers and the Cabinet of the establishment of the Council on Conditions of Service. The Council was modelled around the-
    1. Public Service Commission;
    2. The Public Service Bargaining Council; and
    3. The" Senior Management Conditions of Service Councils" which advises the Minister of Public Service and Administration on conditions of service of the Senior Managers.

The Council on Conditions of Service monitors the implementation by the Services of the policies issued and approved by the Minister of Intelligence Services on the administration of Services. In order not to undermine the Constitution, this Council cannot take the role of the Public Service Commission. Instead, this Council has to confer with the Commission on its work and ensure that the Commission receives a report on the activities of the Services. In essence, we have to protect national security without undermining the Constitution.

The Council is accountable to the Minister for Intelligence Services. For the purposes of annual reports, the Council must submit its reports to the Minister for Intelligence Services.

The Minister for Intelligence Services should in keeping with the constitutional mandate of the Public Service Commission ensure that the Council gives input to the Public Service Commission on how the Services implement policies. Government Protocol requires a Minister to communicate with his or her peer.

In this instance, the Minister for Intelligence Services should send the Council’s report to the Minister of Public Service and Administration who should in turn send this report to the Public Service Commission, a structure under his or her administration.

Although this reporting mechanism is a milestone in the recognition of the Constitutional role of the Public Service Commission, there is a need to put restrictions on the information that has to be in the report for purposes of the Commission, in order to safeguard national security. There is also a need to balance national security with public interest.

The Public Service Commission deals with administration and therefore can not have access to operational matters of the Services. Therefore, it is the responsibility of the Minister for Intelligence Services to ensure that the report that gets sent to the Minister of Public Service and Administration does not contain classified information.

If it would be in the national interest to exclude operational information from the report, the Minister for Intelligence Services must ensure that such operational matters are excluded from the report. This is standard practice on reporting on matters of the Intelligence Services e.g
    1. The reports of the Inspector-General;
    2. reports of the Auditor-General; and
    3. reports of the Joint Standing Committee on Intelligence, excluding confidential information.

We propose that in-
      1. For purpose of clarity ‘responsible’ should be substituted with ‘accountable’ in paragraph (a) of clause 14’; and
      2. In paragraph (c) this new clause should substituted the current clause as follows: "the report must not contain confidential information that would be detrimental to national security."

 

Electronic Communications Security (Pty) Ltd Act, 2002.

 
    1. Clause 18(a) Increasing the composition of the Board of Comsec

In terms of the current provisions of the Act, if the Minister appoints Directors by following the provisions of the Act, there are four executive directors and five non-executive directors one of whom is the chairperson.

Although there is no statutory distinction between executive and non-executive directors, executive directors are responsible in addition to their role as directors, for the day- to-day management of the Company. Non-executive directors are not involved in the day-to-day management of the company.

They are considered as independent directors. The King Code on Corporate Practices and Conduct requires that no Board should have less than two non-executive directors of sufficient calibre in that their views will carry significant weight in Board decisions.

The importance of non-executive directors in the Board is that they-
    1. Bring their special expertise and knowledge to bear on the strategy, enterprise, innovative ideas and the business planning of the company. They are driven by enterprise;
    2. Can monitor and review the performance of the executive management more objectively than the executive director;
    3. Can play the role of resolving conflict of interest situations;
    4. Can act as a check and balance against the executive directors.

Although they hold a fiduciary position re the company and are accountable to the Board for their individual performance. It is desirable that they should be representative of most of the stakeholders to the company for balanced decision making.

It is the intention of the Minister that the non-executive directors of Comsec should represent the following disciplines:

This will ensure that there is sufficient capacity to-
    1. Give strategic guidance to the company;
    2. Check, balance, monitor and review the performance of executive directors; and
    3. Understand the operational functioning of the company.

We believe that the more diverse the views, the more there will be objectivity in the carrying of the business of the company.

Not all the posts of directors may be filled at one given time, but it is prudent that the non-executive directors should have more representation. SITA Act provides for more executive directors as of 2003.

It is important to have streamlined Boards in order to monitor the performance of individual directors. One of the disadvantages of big Boards is that it is difficult to convene meetings and to balance interests. However, on the other hand issues like representatively, equity leads to big Boards, which should be avoided.

 

MINISTRY FOR INTELLIGENCE SERVICES, CAPE TOWN, 2003 SEPTEMBER 17.