Newly proposed intelligence legislation allowing for bulk "surveillance of international signals" and giving the minister responsible for intelligence the power to make regulations on, among other things, "information security" will pass Constitutional muster.
This is according to Minister in the Presidency Khumbudzo Ntshavheni, who is the high-level official currently responsible for the country's intelligence services.
The General Intelligence Laws Amendment Bill (GILAB) was approved by the Cabinet in May. It intends to give effect to the recommendations of the Presidential High-Level Review Panel on the State Security Agency (SSA), which was chaired by former minister Sydney Mufamadi, and the State Capture Commission, chaired by Chief Justice Raymond Zondo.
Both the Mufamadi panel and the Zondo Commission took a dim view of the SSA.
The panel found the SSA "had largely become a parallel intelligence structure serving a faction of the ruling party and, in particular, the personal political interests of the sitting president of the party and country."
On Thursday, Ntshavheni responded to questions from MPs in the National Council of Provinces.
"The draft has been submitted to Parliament for processing, and the institution has adopted an ad-hoc committee to process the GILAB. It is accompanied by a certificate of the chief state law advisors that confirm the clauses in the legislation as submitted by the executive are constitutional and will meet constitutional muster," she said.
DA MP Dennis Ryder, who took a dim view of the current status of the SSA, had asked: "It is common knowledge that a high-level panel report and the State Capture Commission recommended the separation of the two departments, domestic and foreign. To be able to fully implement this and more of the recommendations, the GILAB needs to be processed. Given that our intelligence services have often been under attack for not doing their work, is there a problem with the constitutionality of the legislation?"
Chief among both panels' recommendations was that the SSA should be restructured into a domestic intelligence agency and a foreign intelligence service.
This is one of the main aims of GILAB, which will amend the National Strategic Intelligence Act and other legislation to establish the Foreign Intelligence Service – which will be responsible for "foreign intelligence gathering so as to identify opportunities and threats to national security" and the Domestic Intelligence Agency which will be responsible for counter-intelligence as well as gathering of domestic intelligence in order to identify threats to national security," according to the bill's memorandum.
The bill defines national security as "the measures, activities and the capabilities of the state to pursue, advance any opportunity or potential opportunity and the security of the Republic and its people including national interests and national values as contemplated in Section 198 of the Constitution".
Ntshavheni said work was being done to implement all the recommendations.
"There were 14 recommendations that relate to our work, and so far, we have implemented 10 of those recommendations. These include strengthening financial controls and enabling the Auditor-General to audit the SSA.
"The SSA management is also on course to professionalising the agency and implementing financial management controls," she said.
The bill states that the intelligence services "must conduct a vetting investigation in the prescribed manner to determine the security competence" of a number of people, including people who "seek to establish and operate a non-governmental organisation or religious institution" and people who "seek to establish a private security company in the Republic."
The other people who must be vetted are more what one would expect: people to be employed or render a particular service to an organ of state; have access to classified information and intelligence in possession of that organ of state; or have access to areas designated as national key points or critical infrastructure areas in terms of the relevant law.
Zondo, who headed the commission, was scathing of Parliament's secretive Joint Standing Committee on Intelligence (JSCI) and highlighted numerous examples of how the JSCI in previous parliaments, failed completely to do its job, including how the previous JSCI committees failed to take action when no Inspector-General for Intelligence (IGI) was appointed for 22 months (between 2015 and 2017).
Under the watch of the previous iterations of the JSCI, ministers were allowed to act with apparent impunity in getting operationally involved in intelligence operations, an investigation into the Guptas by the SSA was squashed, and former president Jacob Zuma and a cabinet minister were apparently able to make the prosecution of Arthur Fraser, a senior spy, go away.