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General Intelligence Laws Amendment Bill (GILAB) Presentation to Ad-Hoc Committee - April 4, 2024

Presentation outlines background, objectives, process, content, and recommendations of the General Intelligence Laws Amendment Bill. It covers the disestablishment of SSA, establishment of new intelligence entities, legislative amendments, bulk interception, and compliance with Constitutional Court rulings.

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General Intelligence Laws Amendment Bill (GILAB) Presentation to Ad-Hoc Committee - April 4, 2024

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  1. PRESENTATION TO THE AD-HOC COMMITTEE NCOP 4 April 2024 GENERAL INTELLIGENCE LAWS AMENDMENT BILL (GILAB)

  2. OUTLINE OF THE PRESENTATION  Background information  Objectives of the Bill  Process followed  Content of the Bill • Definitions • Mandates of the Agency, Services, Centre & SANAI o Bulk interception (Constitutional Court ruling) • Other legislative amendments  Concluding remarks  Recommendations 2

  3. BACKGROUND INFORMATION Upon receipt of the report compiled by the High Level Review Panel, the President adopted all the recommendations and further instructed the unbundling of the SSA and the establishment of the two services that are fit for purpose.  The disestablishment of SSA and the establishment of the South African Intelligence Agency and of the South African Intelligence Service as well as the National Communications Centre and SANAI • Should be done through amendment of intelligence laws  Section 209 (1) of the Constitution provides that “any intelligence service, other than any intelligence division of the Defence Force or the Police Service, may be established by the President, as head of the National Executive, and only in terms of national legislation”  Consistent with this Constitutional provision • General Intelligence Laws Amendment Bill (GILAB), 2023 seeks to enable the President, through this legislation, to establish Services which shall be responsible for Counter-Intelligence and Intelligence gathering mandates and functions.  Foreign and Domestic Intelligence The Agency resolved to use the legislative review process to address other challenges that confront South Africa and the Agency in particular • Constitutional Court ruling on bulk interception & other recommendations of the HLRP  3

  4. OBJECTIVES OF THE BILL GILAB, 2023 seeks to amend the National Strategic Intelligence Act no 39 of 1994, Intelligence Services Act, no 65 of 2002 and other relevant Intelligence laws so as to: • Dis-establish the State Security Agency in line with the recommendations of the Presidential High level Review Panel on SSA • Provide for the establishment of the South African Intelligence Agency which shall be responsible for counter-intelligence and intelligence gathering mandate and functions. • Provide for the establishment of a South African Intelligence Service which shall be responsible for foreign intelligence gathering • Clarify the mandates of the two Intelligence Structures that are established • Provide for the re-establishment of SANAI which shall be responsible for Intelligence training • Provide legislative mandate for bulk interception capacity and functions in compliance with the Constitutional Court Judgement on this matter • Provide a regulatory framework for compliance monitoring, coordination and alignment of activities of Intelligence services • Provide for the regulation of Cybersecurity, protection of information and Intelligence • Enable the Minister to prescribe issues of accountability and control of intelligence structures in line with section 209 of the Constitution  4

  5. PROCESS FOLLOWED Draft General Intelligence Laws Amendment Bill (GILAB) 2023 was completed in 2022  Internal consultation within the Intelligence Community finalised  External consultations and presentation to the rest of Government Stakeholders finalised. • The stakeholders referred to include, amongst others; o DEVCOMM, National Treasury o JCPS cluster of DGs o State Law Advisers and Presidency for SEIAS Certificate  Presentation made to the three Ministers, 5 April 2023 • Presidency, Police and Defence  Presentation made to the JCPS Ministers Cluster, 18 April • Two occasions (18 April and 11 May 2023)  Final presentation made to the JCPS Cabinet Committee • 17 May 2023  Cabinet endorsed that the Bill should be introduced to Parliament • 24 May 2023  Minister in the Presidency wrote to the Speaker of the National Assembly about the intention to introduce the Bill to Parliament • 26 May 2023  5

  6. PROCESS FOLLOWED  The General Intelligence Laws Amendment Bill (GILAB) was formally introduced in Parliament Presidency, and referred to the Ad hoc committee on 17 November 2023. • The Committee was briefed by the Minister in the Presidency on the Bill on 29 November 2023. – The Committee was also briefed by the NICOC, SAPS-CI and IGI on their input into the Bill on 5 and 7 December 2023. • The Bill was published for public comments in local and national newspapers in mid-December 2023 and the deadline for public submissions was Wednesday, 31 January 2024.  Following several requests for an extension by individuals and various groups interested in contributing to the Bill, the Committee extended the deadline for written submissions, on 22 January 2024, from 31 January to 15 February 2024 by the Minister in the 6

  7. PROCESS FOLLOWED The Committee conducted Provincial Public Hearings on the Bill from 22 January to 18 February 2024 in 5 provinces • Western Cape, KZN, Gauteng, Limpopo & Mpumalanga • The Committee held National Public Hearings at Parliament and virtual platform from 20 to 21 February 2024 with interested stakeholders and individuals.  Following public participation, the Minister in the Presidency and the SSA, were invited on 07 March 2024 • To provide responses on the public submissions  The Committee held its deliberations on 8, 11 and 13 March 2024  The Committee considered the Bill in its entirety and made proposals for new clauses not covered in the Bill as introduced  There was general agreement and support for the Bill by the Committee  The Bill was presented to the National Assembly on 26 March 2024 for adoption Referred to NCOP for concurrence   7

  8. CONTENT OF THE BILL

  9. KEY DEFINITIONS INTRODUCED Agency means the South African Intelligence Agency Service means the South African Intelligence Service Centre means the National Communications Centre Cybersecurity means the practice of making the networks that constitute cyberspace secure against intrusions, maintaining confidentiality, availability and integrity of information, detecting intrusions and incidents that do occur, and responding to and recovering from them. Espionage means the unlawful and intentional communication, delivery or making available of classified information to directly or indirectly benefit a foreign state, persons or institutions. National Intelligence Structures includes the domestic and the foreign intelligence services established in the Bill in view of the dis-establishment of SSA. Intelligence gathering means the acquisition and processing of relevant and reliable information into intelligence products related to any domestic or foreign opportunity or threat to the advancement and protection of national security.        9

  10. DEFINITIONS (2) National critical information infrastructure means infrastructure, products or systems used to receive, transmit and store information and communications that have been identified and declared as critical for the socio-economic well-being of citizens and which are necessary for the protection of the national security of the Republic in terms of section 2(2)(B) of this Act. Threat to national security includes any action or omission which may potentially cause damage, harm or loss to the national security. Verification services means services designed to identify the origin or the integrity of an information and communications security product, system or service. Security competence assessment means administering a vetting investigation to determine the security competence of a person or institution and if such person or institution is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise. Opportunity means subject to the Bill of Rights and the principles enshrined in the Constitution, such capability, measure or activity employed to pursue and advance national security in accordance with section 198 of the Constitution      10

  11. MANDATE AND FUNCTIONS OF SAIA AND SAIS

  12. MANDATE AND FUNCTIONS The mandate, powers and functions of SAIA, SAIS, NCC and SANAI are derived directly from the National Strategic Intelligence Act and Intelligence Services Act as amended by the General Intelligence summarised as follows: • The South African Intelligence Service (SAIS) shall be responsible for gathering of foreign Intelligence so as to identify opportunities and any threat or potential threat to National Security as well as to provide departmental intelligence and implementation of counter intelligence measures within the service. • The South African Intelligence Agency (SAIA) shall be responsible for conducting and coordination of Counter-Intelligence as well as gathering of domestic intelligence in order to identify any threat or potential threat to National Security. • The National Communications Centre shall, in a prescribed manner, be responsible for monitoring of foreign signals, communications and non- communications so as to identify any threat or Security. • South African National Academy of Intelligence shall provide intelligence training to the intelligence structures and other Government Departments.  Laws Amendment Bill,2023 and are potential threat to National 12

  13. SOUTH AFRICAN INTELLIGENCE AGENCY (SAIA) Mandate 13

  14. MANDATE AND FUNCTIONS ( SAIA) The key mandate and functions of the South African Intelligence Agency (SAIA) is to: • Fulfil national counter-intelligence responsibilities and for this purpose to conduct and coordinate counter-intelligence and to gather, correlate, evaluate, analyse information regarding counterintelligence and domestic intelligence in order to: o identify and impede any threat to the security of the Republic and its people o protect members and in particular those who are exposed to high risk intelligence operations against threats to personal security, unauthorised disclosure of information, identity and other acts of hostility aimed at harming members o inform the President of any such threat o supply where necessary intelligence relating to any such threat to the South African Police Service for the purposes of investigating any offence or alleged offence o impede and neutralise members suspected of contravention of this Act and related regulations and hand them to the relevant law enforcement agencies  14

  15. MANDATE AND FUNCTIONS ( SAIA) o supply intelligence relating to any such threat to the department of Home Affairs for the purposes of fulfilment of any function. o supply intelligence relating to any such threat to any other department of State for the purposes of fulfilment of its departmental functions. o supply intelligence relating to national strategic intelligence to NICOC o provide periodic national security briefing to the Joint Standing Committee on Intelligence, members of Cabinet, Premiers, Parliamentary Presiding Officers and the Chief Justice o gather departmental intelligence at the request of any interested department of State, and, without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the Agency and which constitutes departmental intelligence, to the department concerned and to NICOC o conduct security competence test on categories of persons or institutions referred to in section 2A of the Act in order to issue or decline to issue a security clearance certificate. 15

  16. MANDATE AND FUNCTIONS (NCC) The Centre shall, in a prescribed manner, and with regard to foreign signals, communications and non-communications— • gather, correlate, evaluate and analyse relevant intelligence in order to identify any threat to national security subject to— o submission of bulk interception application for approval by a retired Judge appointed by the President, after consultation with the Chief Justice o the Centre supplying intelligence to the relevant intelligence structures. • in a prescribed manner, and with regard to information security and cryptography, the Centre shall— o identify and secure national critical information infrastructures and protect intelligence from unauthorised access, disclosure, technical and related threats. o provide verification services for electronic communications security products used by organs of state. o provide and coordinate research and development with regard to electronic communications, products and any other related services. o support secure electronic communication solutions to identified Organs of State o coordinate cybersecurity activities in order to identify and impede any cyber enabled threats.  16

  17. MANDATE AND FUNCTIONS (SANAI)  The Academy must, in the prescribed manner, and after consultation with the Agency and Service • provide training for members of the National Intelligence Structures and other government departments including— o training to persons in, or conduct such examinations or tests as a qualification for the appointment, promotion or transfer of persons in or to, the Intelligence Services, Academy or departments, as the case may be, as the Minister may prescribe. o issuing diplomas or certificates to person who have passed such examination or tests. o establishing and maintaining training institutions or centres, in accordance with applicable laws or regulations. 17

  18. SOUTH AFRICAN INTELLIGENCE SERVICE (SAIS) Mandate 18

  19. MANDATE AND FUNCTIONS (SAIS)  The South African Intelligence Service (SAIS) shall be responsible • To gather, correlate, evaluate, and analyse foreign intelligence (excluding foreign military intelligence), in order to—: o identify any opportunity or threat to national security. o supply intelligence regarding any such threat or opportunity to NICOC. o to institute counterintelligence measures within the Service. o to gather departmental intelligence at the request of any interested department of state, and, without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the Service and which constitutes departmental intelligence, to the department concerned. o to provide periodic national security briefings to the Joint Standing Committee on Intelligence, and members of Cabinet. 19

  20. AMENDMENTS TO SECTION 6- REGULATIONS This section is amended as follows:  “The Minister must, after consultation with the JSCI, make regulations regarding— • the manner and form in which the operations of the Service, the Agency and Centre shall be coordinated • information security and protection of intelligence • the manner and form in which cybersecurity operations shall be conducted and coordinated in the Republic including the establishment of required technical capacities • the manner and form in which national critical information infrastructures shall be identified, protected and secured • the manner and form in which policy and legislative compliance monitoring shall be enforced by the Minister in the exercise of Ministerial control and direction as envisaged in the Constitution • the manner and form in which the former members of Intelligence services shall be structured and utilised within the Intelligence Services • the code of conduct of former and current Members of Intelligence services, current and former Ministers and current and former members of Parliament with access to Intelligence information • The manner and form in which the Intelligence services shall supply post-interception reporting to the Judge referred to in section 2(2)(B) The regulations must be made within 12 months after the commencement of the General Intelligence Laws Amendment Act, 2023  20

  21. SUMMARY OF ISSUES RAISED BY PUBLIC & STAKEHOLDERS AND SSA RESPONSES

  22. RESPONSES TO ISSUES RAISED BY THE PUBLIC ( Definitions) ISSUE/ PROPOSAL SSA RESPONSE 1. Opportunity The public raised issues in relation to this definition as being too broad. The Adhoc committee agreed with the SSA submission that the definition be retained in the Bill as it is used in the context Section 198 of the Constitution which sets out the National Security guiding principles and the parameters. It was further agreed that the Constitution creates the extent of the meaning of opportunity in the context of national security. 2. Threat The Public had raised concerns that the Bill does not define the word “ Threat” and there was a need to define it. The Adhoc Committee agreed with the SSA submission that the word “ Threat” is used in reference to threats to National Security and “ threat to National Security” is defined in the Bill. The Adhoc committee accepted this explanation and retained the definition of threat to National Security. 3. Security competence The Bill empowers the Domestic Intelligence Agency, Crime Intelligence, Defence Intelligence and Foreign Intelligence Service to conduct vetting investigations in order to determine security competence of a person. The Bill further prescribes categories of persons or institutions to be subjected to the vetting investigations referred to above and this proposal is consistent with the current existing law on vetting. 22

  23. RESPONSES TO ISSUES RAISED BY THE PUBLIC ( Definitions)(….2) ISSUE/ PROPOSAL SSA RESPONSE 4. Foreign Intelligence Domestic and Most of the public input received had proposed that these definitions as contained in the current National Strategic Intelligence Act be retained as per the Act and should not be amended. The Adhoc Committee adopted this proposal and the definitions as contained in the Act are retained and not amended. 5. Compulsory vetting There was a view from the public that vetting should not be made compulsory in particular in relation to the categories provided for in the Act. The SSA submitted that currently vetting is discretionary and this create a challenge in cases where some Organs of State employ people in critical positions without the requisite security clearance on the grounds that Vetting is not compulsory in law. In some instances, vetting investigations delay because of non cooperation from the affected employees. In view of the above stated, the SSA proposed that the Bill should make vetting compulsory for the listed categories in the Act. This approach will improve compliance with the vetting requirements for the relevant employees of the State. The adhoc committee agreed with this submission from the SSA and in this regard, the Bill makes vetting compulsory for the listed categories in the Act. 6. Autonomy of the OIGI The office of the OIGI and the public input raised the concern that the Bill was not addressing the issue of the autonomy of the OIGI as raised also in the High Level Review Panel. The Bill was amended to include provisions that provide autonomy to the OIGI in particular in relation to employment of Staff, ring-fencing of the Budget of the OIGI and the determination of the appropriate structure of the OIGI. The Bill also creates a framework of consultation between the Minister and the IGI on matters that are necessary in terms of the applicable laws relating to Public Service and Public Finance Management process. 23

  24. RESPONSES TO ISSUES RAISED BY PUBLIC ISSUE/ PROPOSAL SSA RESPONSE 7. Autonomy of NICOC NICOC and the public input raised concerns relating to the fact that the Bill was not giving NICOC and the Coordinator for Intelligence the necessary autonomy to perform its functions. Their view was that this was making the Coordinator to be subjected to the authority of the DG of the SSA (Agency) and this was contrary to the relevant laws in this regard. In addressing this issue, the Bill was amended so as to incorporate provisions that provide autonomy of NICOC and the Coordinator in particular in relation to employment of Staff in the Office of the Coordinator, ring-fencing of the NICOC Budget, determination of the appropriate structure of the office of the Coordinator. The Bill also creates a framework of consultation between the Minister and NICOC on matters that are necessary in terms of the applicable laws. 8. Minister Intelligence Operations Clarity the relation role of to Section 10 of the Intelligence Services Act is amended by this Bill in order to ensure that the Minister is not involved in approving operational matters. The amendment further clarifies that the role of the Minister is confined to giving policy directives or exercising executive authority on intelligence matters in line with the Constitution and law. in 9. The Bill should have been informed National Strategy The SSA has adopted a phased approach in the implementation of the HLRP recommendations. According to the plan, phase one deals with matters provided in the GILAB 2023. by Security the Phase 2 will deal with issues relating to the review of the White Paper, National Security Policy and Strategy. It is important to indicate that the National Security Strategy has since been approved by Cabinet. 24

  25. ISSUES RAISED BY PUBLIC ISSUE/ PROPOSAL MADE SSA RESPONSE 10. Constitutional Court Ruling on Monitoring of Foreign Signals (Bulk surveillance) In relation to monitoring of foreign signals, communications and non-communications, Constitutional Court directed that there must be a legal framework to provide for this function. That the legal framework provided must be constitutionally compliant and provide for the constitutional safeguards in the implementation of this mandate. the The Bill also provides for a prescribed manner to ensure all the Constitutional safeguards are complied with in the implementation of this mandate. In addition, the Bill empowers the relevant Judge appointed by the President, to approve bulk interception applications and impose all the necessary conditions to ensure that this process complies with Constitution and law. The adhoc committee further incorporated additional provisions relating to the management of bulk interception data, access requirements, storage and destruction of such data. The Bill also provide for surveillance arising out of monitoring of foreign signals. The Bill also empowers the Minister to regulate the manner and form in which post interception notification process to the appointed judge will be done. 11. Corruption and access to basic services The adhoc committee advised members of the public that issues relating to service delivery challenges would be taken to the relevant committees of Parliament. Although they are critical, they are not directly linked to GILAB process. 25

  26. THANK YOU

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