The General Intelligence Laws Amendment Bill (Gilab) "in effect, seeks to limit and, in other areas, fails to address the independence of the Office of the Inspector-General", Inspector-General of Intelligence (IGI) Imtiaz Fazel told the ad hoc committee processing the bill.
This is in sharp contrast 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.
The panel found that 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".
Yet, President Cyril Ramaphosa's administration thought it wise to let the SSA draft Gilab.
Among the 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 counterintelligence as well as gathering of domestic intelligence in order to identify threats to national security", according to the bill's memorandum.
However, regarding the commissions' findings requiring greater oversight and accountability, Gilab, at face value, appears to do the opposite.
On Tuesday, the ad hoc committee heard that the SSA didn't include most of the proposals by the National Intelligence Coordinating Committee (Nicoc) and the bill, in effect, waters down Nicoc's coordinating role.
On Thursday, Fazel told the committee the IGI never had the opportunity to present its proposals to the SSA. He wrote to Minister in the Presidency Khumbudzo Ntshavheni, who oversees state security, about this. She advised him that they should deliver their input to the committee.
Fazel said the Constitution provides for intelligence as an essential part of our democratic architecture.
"It recognises intelligence as a force for good rather than some alien concept or something alien to democracy.
"However, we all know that the effective functioning of intelligence is also dependent on secrecy, powers of intrusion and also the ability to manipulate intelligence outcomes. And all of these powers are incompatible with the features of a democratic state," he said.
He said the Constitution recognises that, in the absence of safeguards, intelligence services are not only a force for good but can also threaten democracy.
To balance the competing interests, the Constitution provides for the proper regulation of intelligence services, which must operate with control and oversight.
Oversight mechanisms such as Parliament's Joint Standing Committee on Intelligence (JSCI), the IGI and elements of the judiciary are provided for in the Constitution.
He said it was very important that the system of checks and balances works properly.
"The current institutional and administrative arrangements for the Inspector-General are incompatible with these requirements and these provisions where the current dispensation causes the Inspector-General [to be] subservient in some respects to the intelligence services, which he or she oversees," Fazel said.
"And this, in many respects, may restrain oversight. It also has an adverse effect on the impact of the Inspector-General and also the perception of the trustworthiness of the Inspector-General in the eye of the public, especially with respect to the ombud role."
He said this had been recognised by the Mufamadi Panel as well as two other panels from the early 2000s.
"And this later was endorsed by the Zondo Commission of Inquiry into State Capture."
In terms of Gilab, intelligence services (the SSA, the police's Crime Intelligence and the SA National Defence Force's intelligence unit) must report significant intelligence failures to the IGI. However, "significant intelligence failures" are not defined in the legislation.
"So, that defeats the purpose of this section," said Fazel.
The IGI proposed that "significant intelligence failures" be defined as follows: "Significant intelligence failure means, but is not limited to, an incident, act or omission which has occurred within a service's statutory mandate, which resulted in a failure by that service to comply with any of its statutory functions and operational priorities and which impacted on a national security interest of the republic."
Furthermore, the definition of "unlawful intelligence activity" leaves the heads of intelligence services with the discretion of whether to report unlawful intelligence activity to the IGI.
To remedy this subjective discretion, the IGI proposed the following definition for "unlawful intelligence activity": "Unlawful intelligence activity means an activity carried out by a service that is in contravention of the Constitution and applicable laws on intelligence and counterintelligence."
Fazel said several review commissions had raised concerns about the independence of the IGI and that "some sort of arrangement needs to be instituted to provide for greater autonomy for the Inspector-General".
He said: "The current Gilab further limits the autonomy of the Inspector-General. If it brings about any changes, it further limits the autonomy of the Inspector-General."
Currently, Gilab requires the minister responsible for state security to approve all appointments at the IGI and approve its organisational structure. This wasn't discussed with the IGI, which said it limits its independence.
The IGI proposed that Gilab includes the following provisions:
The Inspector-General may, subject to this act, do and cause to be done all things necessary for the efficient superintendence, control and functioning of the [Office of the Inspector-General for Intelligence], including the appointment of persons to the office and the management of the budget, as prescribed.
The Inspector-General may determine the organisational structure and grading of posts for the functioning of the Office of the Inspector-General.
Fazel said they wanted to express their concern that Gilab, in its current form, was contrary to the recommendations of the 2006 and 2008 commissions, as well as the Mufamadi Panel and the Zondo Commission, which "[called] for the independence of the Inspector-General".
Furthermore, the IGI is concerned by a provision in Gilab that would allow the SSA's domestic branch to "impede and apprehend members suspected of contravention of [the National Strategic Intelligence Act] and related regulations, and hand them to the relevant law enforcement agencies".
According to the IGI, "apprehend" confers the powers of arrest.
"It is therefore unclear whether intelligence members have now been given the powers of arrest. In the absence of an offences provision in the National Strategic Intelligence Act, it remains uncertain how a contravention will take place," reads the IGI's presentation to the committee.
IGI legal advisor Jay Govender said the current intelligence legislation does not provide for the power of intelligence services to arrest.
"The minute you use the word arrest, Section 35 of the Constitution kicks in, where persons who are arrested have powers to remain silent ... all kinds of powers that are listed in Section 35," she said.
"Hence, our concern was, when you say apprehend, taking into account fair trial rights [which] commence at the time of arrest, it will have an impact on a fair trial when it comes to the trial stage. What will now be the position of the SSA? It is very, very clear [that this] will taint the whole process.
"So, that, to us, is a real concern."
She said, furthermore, there had long been a lacuna in the National Strategic Intelligence Act in that it does not have an offences and penalties clause.
"I mean, there's no contravention of the act as it stands because there is no offences clause," said Govender.
"The SSA does not have the powers or the functions to arrest people; that resides with SA Police Service. And it goes directly to the separation of functions and duties. So, that really needs to be looked at."
Govender further said the IGI shouldn't be subjected to any decisions by the director-general of the SSA, which is currently the case.
"What we would really like, in the long run, is a complete overhaul of the oversight act," she said.
The committee will embark on a public participation process that will take place through physical public hearings in Limpopo, Gauteng, Mpumalanga, KwaZulu-Natal and the Western Cape early in the new year.