intelligence in a constitutional democracy final report to the ... - Mg

Despite focusing on serious crimes, NIA’s mandate would be completely
different from that of the police. Whereas the police are responsible for law
enforcement and criminal investigation leading to prosecution, the emphasis
of the domestic intelligence agency should be on detection, analysis,
prediction, prevention, forewarning and advice to the Executive.
Counter-intelligence mandate
In terms of the Act, NIA’s counter-intelligence mandate entails four functions,
two of which are clear and regulated: to protect intelligence and classified
information, and to conduct security screening operations. The other two
functions – to impede and neutralise the effectiveness of foreign or hostile
intelligence operations, and to counter subversion, treason, sabotage and
terrorism – are not described precisely and are not regulated.
The absence of legal rules and executive policy on these countermeasures is
extremely dangerous as it might lead to interference in politics and infringing
rights without sufficient cause. The Act should define counter-measures more
precisely and should regulate the use of these measures.
The Act should prohibit the intelligence services from disseminating false or
misleading information and from interfering with lawful political and social
activities in South Africa and other countries.
Departmental intelligence
The definition of departmental intelligence in the Act should be narrowed in
line with the preceding proposals on narrowing NIA’s intelligence mandate.
The Minister should issue guidelines that regulate and expedite the provision
of departmental intelligence.
A request for NIA to provide departmental intelligence must be made by the
responsible minister in the case of a national department and by the
provincial Premier in the case of a provincial department, and the request
must be made to the Minister for Intelligence Services.
Chapter 7: Intrusive Operations
Intrusive methods of investigation by the intelligence services, such as spying
on people and tapping their phones, are a matter of great constitutional and
political importance since they infringe the rights to privacy and dignity. They
might also breach the political rights that are enshrined in the Constitution.
Because intrusive methods infringe rights, they are unconstitutional unless
they are employed in terms of law of general application. Legislation currently
permits the intelligence services to intercept communication and enter and
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