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1.5.3 Meeting with the President We requested a meeting with President Mbeki in order to hear his comments and recommendations on the topics covered by our terms of reference and on the following issues in particular: The notion that the President is the ‘primary client’ of the intelligence services. The relationship between the President, the Minister for Intelligence Services and the heads of the intelligence services, and procedures for supplying intelligence to the Executive. Means of enhancing control over the intelligence services so as to prevent abuse of power. The meeting with President Mbeki and Dr Frank Chikane, Director-General in the Presidency, took place on 10 May 2008. The discussion was of great value to the Commission in drafting Chapter 4 on ministerial control and responsibility. 1.5.4 Interaction with the Minister We had several meetings with Minister Kasrils at which we informed him of our progress and sought information on certain issues. We gave him draft chapters as we prepared them and submitted two activity reports to him. 7 In March 2008 the Minister asked us to comment on the Protection of Information Bill. We drafted a detailed memorandum, which was published on 7 Ministerial Review Commission on Intelligence, ‘Report to the Minister for Intelligence Services’, I July 2007; and Ministerial Review Commission on Intelligence, ‘Report to the Minister for Intelligence Services’, 31 January 2008. 32
the website of the Ministry for Intelligence Services. 8 When the Protection of Information Bill (B28-2008) was presented to Parliament, the Ad Hoc Committee on Intelligence in the National Assembly issued a call for public submissions. After consulting the Minister we made a submission to the Committee. 9 We discuss the Bill in Chapter 12 of the Report. We also prepared for the Minister a memorandum on the draft bills that provide for the establishment and functions of the National Communications Centre (NCC). 10 Since the NCC intercepts private communication and thereby infringes the constitutional right to privacy, we solicited a legal opinion from an advocate in private practice. 11 Following the tabling of the draft legislation in June 2008, 12 we made a submission to the Ad Hoc Committee on Intelligence in the National Assembly. 13 The NCC and the draft legislation are discussed in Chapter 8. 1.5.5 Interaction with the intelligence organisations The Commission met with the heads of the following bodies: NIA; SASS; NICOC; the NCC; the OIC; COMSEC; the Office of the Inspector-General of Intelligence; the South African National Academy of Intelligence (SANAI); and the Task Team on the Review of Intelligence-Related Legislation, Regulation and Policies. In most instances the heads of the organisations were accompanied by senior officials. The proceedings were recorded. 8 Ministerial Review Commission on Intelligence, ‘Memorandum on the Protection of Information Bill’, submitted to the Minister for Intelligence Services, 31 March 2008. 9 Ministerial Review Commission on Intelligence, ‘Revised Submission on the Protection of Information Bill’, submitted to the Ad Hoc Committee on Intelligence in the National Assembly, 20 July 2008, available at www.intelligence.gov.za/commission. 10 Ministerial Review Commission on Intelligence, ‘Memorandum on the NCC and Draft NCC Legislation’, submitted to the Minister for Intelligence Services, February 2008. 11 L. Nkosi-Thomas, ‘Legal Opinion’, commissioned by the Ministerial Review Commission on Intelligence, 4 October 2007. 12 National Strategic Intelligence Amendment Bill [B 38-2008] and Intelligence Services Amendment Bill [B 37-2008]. 13 Ministerial Review Commission on Intelligence, ‘Submission on the National Strategic Intelligence Amendment Bill [B 38-2008]’, submitted to the Ad Hoc Committee on Intelligence in the National Assembly, 10 July 2008, available at www.intelligence.gov.za/commission. 33
Page 1 and 2: INTELLIGENCE IN A CONSTITUTIONAL DE
Page 3 and 4: TABLE OF CONTENTS FOREWORD 7 EXECUT
Page 5 and 6: 8. INTERCEPTION OF COMMUNICATION AN
Page 7 and 8: FOREWORD BY JOE MATTHEWS, CHAIRPERS
Page 9 and 10: EXECUTIVE SUMMARY Chapter 1: Introd
Page 11 and 12: partisan manner, any interest of a
Page 13 and 14: The intelligence legislation should
Page 15 and 16: unnecessary, and it detracts from N
Page 17 and 18: search premises. Other intrusive me
Page 19 and 20: Chapter 9: Internal Controls The in
Page 21 and 22: we mean the widely shared or domina
Page 23 and 24: All ministerial regulations on inte
Page 25 and 26: CHAPTER 1: INTRODUCTION 1.1 Introdu
Page 27 and 28: The intelligence crisis of 2005/6 w
Page 29 and 30: seek to influence the Commissioners
Page 31: phase we had follow-up sessions wit
Page 35 and 36: Presidency and the Auditor-General
Page 37 and 38: ordinator for Intelligence as the c
Page 39 and 40: The National Intelligence Agency (N
Page 41 and 42: The South African National Academy
Page 43 and 44: 1.7 Acknowledgements The Commission
Page 45 and 46: Internal controls and institutional
Page 47 and 48: prevented in conditions of secrecy?
Page 49 and 50: not governed by legislation (Chapte
Page 51 and 52: Neither the security services nor a
Page 53 and 54: One of the major implications of th
Page 55 and 56: In Section 4.7 we highlight the pro
Page 57 and 58: Where intelligence abuses have been
Page 59 and 60: themselves. Internal controls, self
Page 61 and 62: We believe that the intelligence co
Page 63 and 64: CHAPTER 3: THE WHITE PAPER ON INTEL
Page 65 and 66: The White Paper has two annexures t
Page 67 and 68: The Code of Conduct for intelligenc
Page 69 and 70: The main weakness of the White Pape
Page 71 and 72: 3.7 An Overly Broad Domestic Intell
Page 73 and 74: Problems of overreach. If the manda
Page 75 and 76: 3.8 Recommendations In its 2006 rep
Page 77 and 78: CHAPTER 4: MINISTERIAL CONTROL AND
Page 79 and 80: Constitution, and must either assum
Page 81 and 82: The Minister must approve the funct
Page 83 and 84:
4.3.3 Intelligence Services Oversig
Page 85 and 86:
of such national interests irrespec
Page 87 and 88:
NICOC must disseminate intelligence
Page 89 and 90:
The Minister might be unable to adv
Page 91 and 92:
4.4.6 Reporting to the President Th
Page 93 and 94:
extraordinary scenario, as where th
Page 95 and 96:
these two statutes in this particul
Page 97 and 98:
In 2007 the Minister issued the Reg
Page 99 and 100:
Providing foreign intelligence serv
Page 101 and 102:
4.8.2 Complaints against the Minist
Page 103 and 104:
NICOC must provide the Minister wit
Page 105 and 106:
If a parliamentary committee (other
Page 107 and 108:
The existing regulations and those
Page 109 and 110:
In this Chapter we recommend that t
Page 111 and 112:
To receive and investigate complain
Page 113 and 114:
The Inspector-General must serve im
Page 115 and 116:
power by the intelligence services
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5.5.1 The independence of the OIGI
Page 119 and 120:
If the Inspector-General uncovers c
Page 121 and 122:
The Task Team insisted that this is
Page 123 and 124:
Nevertheless, it seems clear from t
Page 125 and 126:
Once the relevant court proceedings
Page 127 and 128:
The dangers arising from NIA’s po
Page 129 and 130:
the White Paper on Intelligence of
Page 131 and 132:
strategic parastatals; the impact o
Page 133 and 134:
associated with the broad mandate.
Page 135 and 136:
The perceived role of the intellige
Page 137 and 138:
6.5 The Dangers of Political Intell
Page 139 and 140:
intelligence “should be practiced
Page 141 and 142:
One of the clients of the intellige
Page 143 and 144:
government. Instead, it would monit
Page 145 and 146:
It is a matter of great concern tha
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Republic that falls within the func
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interpretation of the Agency’s ma
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We do not endorse NIA’s recommend
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forewarn and advise the Executive a
Page 155 and 156:
CHAPTER 7: INTRUSIVE OPERATIONS 7.1
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Intrusive methods of intelligence c
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his or her family members, friends
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freedom that is beyond interference
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No search of premises and seizure o
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Interception of Communications and
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are reasonable grounds to believe t
Page 169 and 170:
NIA’s operational directive on it
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Grounds for the Use of Intrusive Me
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should not be allowed to violate th
Page 175 and 176:
officer. 46 The Court observed that
Page 177 and 178:
7.7 Recommendations 7.7.1 Legislati
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effective routine and ad hoc monito
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NCC Bill and we submitted a memoran
Page 183 and 184:
legislation regulating the NCC. Dra
Page 185 and 186:
Bulk interceptions are not usually
Page 187 and 188:
unlikely to succeed or are too dang
Page 189 and 190:
The Ministry official argued furthe
Page 191 and 192:
intercepts the communication of a t
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8.6.2 The subjects of the constitut
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The Bill does not indicate which or
Page 197 and 198:
In assessing the constitutionality
Page 199 and 200:
intelligence operations and the man
Page 201 and 202:
8.9 SASS Policy on Interception of
Page 203 and 204:
The Bill should provide for the dis
Page 205 and 206:
The Office of the Inspector-General
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The third critical factor is the co
Page 209 and 210:
The Task Team added that the integr
Page 211 and 212:
The Task Team recommended that the
Page 213 and 214:
9.4 A Problem of Too Much Regulatio
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ministerial control, parliamentary
Page 217 and 218:
We support the recommendations of t
Page 219 and 220:
The failure to publish and present
Page 221 and 222:
The Intelligence Services Oversight
Page 223 and 224:
Intelligence organisations througho
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Auditor-General has only undertaken
Page 227 and 228:
The following qualification is thus
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that has a direct interest in the a
Page 231 and 232:
ectify the practice of limited acce
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CHAPTER 11: INSTITUTIONAL CULTURE 1
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This Chapter covers the following t
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Conversely, government and oppositi
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"active measures" or "covert action
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11.4 Civic Education Programme for
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Constitution within the intelligenc
Page 245 and 246:
11.5 Inspector-General’s Perspect
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In the opinion of the State Law Adv
Page 249 and 250:
completely gone when a totally new
Page 251 and 252:
The Bill of Rights applies to all l
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danger, this duty helps to protect
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Parliament of this necessity and th
Page 257 and 258:
Intelligence Services, the Inspecto
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CHAPTER 12: TRANSPARENCY, SECRECY A
Page 261 and 262:
12.2 Constitutional and Governance
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take place according to criteria an
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A system of over-classifying inform
Page 267 and 268:
component of national policy that e
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published some of its annual report
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and be made public, 25 the audit re
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12.4.2 PAIA manuals Section 14 of P
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or ‘top secret’. The heads of o
Page 277 and 278:
“the information is sensitive inf
Page 279 and 280:
NICOC and the Office of the Inspect
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Cawthra, G. and R. Luckham (eds), 2
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General’, address in the National
Page 285 and 286:
South African History Archive, 2007
Page 287 and 288:
Independence of the Commission The
Page 289 and 290:
S.L. Mathe V.M. Ntsubane A. Roberts
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Chapter 4: Ministerial Control and
Page 293 and 294:
Whether a breakdown in trust betwee
Page 295 and 296:
The Inspector-General should not be
Page 297 and 298:
The counter-intelligence mandate NI
Page 299 and 300:
The legislation should state that t
Page 301 and 302:
The determination of the level of a
Page 303:
Once the Minister has finalised the
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