16 March 2012

Submission on the General Intelligence Laws Amendment Bill

As previously reported by SAHA, an Ad Hoc Committee of the National Assembly is currently considering the General Intelligence Laws Amendment Bill. The bill substantially amends three key laws governing the intelligence services; the National Strategic Intelligence Act 1994, the Intelligence Services Act 2002 and the Intelligence Services Oversight Act 1994.

As part of the consultation process, SAHA made a written submission on the transparency and privacy issues contained in the bill. Of key concern to SAHA is that the bill fails to adopt key recommendations of the report ‘Intelligence in a Constitutional Democracy' prepared by the 2008 Ministerial Review Commission on Intelligence which the commission considered would "enhance openness in the interests of democracy without undermining security or compromising intelligence operations". In particular the bill:

• Does not require the national intelligence priorities identified by the National Intelligence Co-ordinating Committee (Nicoc) to be subject to parliamentary and public consultation and debate. Instead the recommendations of Nicoc are reviewed only by Cabinet.

• Does not require regulations prepared by the Minister in respect of the intelligence services to be published and available to the public. Instead, the Minister can make secret regulations about important matters such as the conduct of intrusive operations (tapping phones and reading email accounts) and methods for gathering intelligence. This is inconsistent with the Constitution which requires regulations to be accessible to the public.

• Does not require the budgets and annual financial reports of the intelligence services to be reviewed by parliament or the public.

• Allows audit reports prepared by the Auditor-General in respect of the intelligence services to be classified as ‘confidential' or ‘secret' and therefore unavailable to the public. This is inconsistent with the Constitutional requirement that all audit reports of the Auditor-General are publicly available.

These failings of the bill mean that the intelligence services will be allowed to continue to operate under a veil of secrecy and will not be accountable to the public for the actions they take and the vast budgets they receive.

A further concern with the bill is the impact it will have on the privacy of ordinary South Africans. The bill creates new provisions for monitoring what it terms ‘foreign signals intelligence'. The broad definition of the term means that because many South African websites and email accounts are hosted outside South Africa, the intelligence services will be allowed to monitor domestic and foreign communication under the new provision. The bill does not detail how that monitoring will occur, instead leaving the details to the Minister to prepare regulations. This could result in the intelligence services being able to read your emails and listen to your phone calls without any suspicion that you are involved in crime and without getting a warrant from a judge.

The Bill must be reviewed to ensure that the intelligence services are accountable to parliament and to the public at large.

Read SAHA's full submission on the General Intelligence Laws Amendment Bill.

For more information contact the Freedom of Information Programme.