South Africa’s Intelligence reform: a new era for oversight and accountability

The signing of the General Intelligence Laws Amendment Bill into law, has been hailed as a step in the right direction towards bringing South Africa’s intelligence into what it is supposed to be, after years of “secrecy culture and abuse of power”.

The law recently signed by President Cyril Ramaphosa, will be a foundation for reforms to South Africa’s intelligence services. It amends the National Strategic Intelligence Act of 1994, the Intelligence Services Act of 2002, and the Intelligence Services Oversight Act of 1994.

The Act also disestablishes the current State Security Agency as a national government department and replaces it with two separate departments — the Foreign Intelligence Service (FIS) and the Domestic Intelligence Agency (DIA).

The FIS, which wil be responsible for foreign intelligence gathering to identify opportunities and threats to National Security, while the DIA which will be responsible for counter-intelligence as well as the gathering of domestic intelligence in order to identify threats to National Security.

The Presidency said the laws make provisions that both the departments will be accompanied by improved oversight and accountability.

The amendment Act also re-establishes the South African National Academy of Intelligence (SANAI) and Intelligence Training Institute for both domestic and foreign intelligence capacities. 

It also provides greater autonomy for the Inspector-General of Intelligence and the National Intelligence Coordinating Committee (NICOC) to make administrative and functional decisions.

The IGI is mandated by the Constitution and the Intelligence Services Oversight Act, to monitor and review the activities of intelligence services, investigate complaints, and ensure compliance with laws and policies. It also investigates complaints lodged by members of the public and members of the Intelligence Services on alleged maladministration or abuse of powers by the Services.

“The wide-ranging amendments constitute implementation of the recommendations of the 2018 Presidential High-Level Review Panel on the State Security Agency (SSA) and of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector (the Zondo Commission).

“The law provides for the administration, financial management and expenditure of the intelligence service entities to be within the ambit of the oversight of the Joint Standing Committee on Intelligence – a multiparty committee of Parliament that processes public complaints about the intelligence services and monitors the finances and operations of these services,” the Presidency said.

During the submissions stage, there were concerns from several civil society groups that the amendments were giving the government too much power to spy on and invade the privacy of citizens.

However, the Presidency said, the law also addresses concerns about bulk interception by intelligence services of internet traffic entering or leaving South Africa, by introducing new measures including authorisation within the intelligence services as well as court reviews of such interception.

Prior to the amendment Act, the High Level Review Panel chaired by Dr Sydney Mufamadi, whose findings were declassified by Ramaphosa in 2019, found that there had been political malpurposing and factionalisation of the intelligence community over the past decade or more that has resulted in an almost complete disregard for the Constitution, policy, legislation and other prescripts.

Mary de Haas, KwaZulu-Natal Violence Monitor said the signing of the Act is a big step forward, because the situation had come to the point where one can’t get information half the time because a culture of secrecy has been entrenched since 2009.

“I’m very pleased (about the signing of the amendment Act). A lot of us have been pushing forward. It took years to get through. Basically, what we are doing is going back to the way it's supposed to be, because when (former President Jacob) Zuma came into power, he just trashed the Constitution when it came to civilian oversight of the security agencies. And a culture of secrecy was introduced, and that is really dangerous. 

“I mean, for example, it is well known that some of Zuma’s private henchmen were deployed to do extra surveillance, assassination technique training in the Brics countries. And we don’t even know who they report to. Now this is State Security. We have a separate problem too with the Police crime intelligence. This was presented to parliament by then Independent Police Investigative Directorate’s (IPID) Executive Director, Robert McBride,” de Haas said.

She said all these things were able to happen because of the cloud of secrecy. She added that the amendment Act gives the IGI more powers and independent financial income, whereas previously, it was largely dependent on state security.

“The problem is that the very people they (IGI) are supposed to oversee, state security, are the very same people who can decide who the new inspector general of intelligence is. It’s a bit crazy, so there’s got to be more independence there too. In other words, the security agencies are government controlled. They are not independent, and this is a step towards giving them back independence through a more transparent oversight,” she said.

“I don't know what the next step is because the parliamentary oversight committee on intelligence was still being constituted until quite recently because everybody who sits on the parliamentary intelligence oversight committee has to have a security clearance from state security. I think it was taking a while to get the committee up and running. So, I shall monitor the situation quite closely because I think we now have to test the system.

“We have to see what happens with the budget for the Inspector General of Intelligence, is it going straight from the Treasury now to the office of the IGI and also we are going to have to keep an eye on how the Parliament deals with it because don’t forget parliament is our oversight,” she said. 

De Haas added that people forget that “we” have to hold parliament accountable for oversight and it’s been really difficult because of all the secrecy around it. Even the meetings of the parliamentary oversight committee are very secretive.

“We are hoping that this is a slow beginning to getting back to more transparency because that is what the Constitution decrees. The Constitution did not envisage that we go back to the secrecy of apartheid,” she said.

She added that the state’s abuse of power has ruined many lives including that of whistle blower Patricia Mashale.

Matthew Parks, Cosatu’s Parliamentary Coordinator said the 7th Parliament should further strengthen the Office of the Inspector-General for Intelligence to ensure the findings of the Inspector-General are binding upon state intelligence organs that it is constitutionally bound to monitor.

He added that this would ensure the state’s security and intelligence agencies perform their constitutional mandates and are held accountable.

“Intelligence and security services are an essential part of any modern state. What is critical is to ensure there are sufficient checks and balances, transparency and oversight mechanisms set in law to prevent their potential abuse. South Africa saw the real costs of such shenanigans during the decade of state capture when the State Security Agency and other intelligence organs were wantonly abused for personal, criminal and factional purposes. 

“The Act provides a welcome response to these abuses and more specifically to the Presidential High-Level Panel led by Dr. Sydney Mufamadi made clear recommendations on overhauling the existing and clearly weak legislation providing oversight over the security and intelligence services,” Parks said.

gcwalisile.khanyile@inl.co.za