The contentious new intelligence Bill has run into a new round of flak as critics complain that it threatens to concentrate excessive power in the hands of the minister of state security and bolster security hawks who are gaining ground in government.
The General Intelligence Laws Amendment Bill is intended to formalise the amalgamation of the domestic and foreign intelligence services into one security agency, but some key proposals will result in the minister becoming a unique gatekeeper to the agency and its products.
A senior intelligence official, who does not want to be named, said the Constitution put the president or his delegate in charge of the intelligence services but, over time, authority had shifted steadily to the minister.
“It was never really intended that there should be a minister of intelligence, but now we have the creeping evolution of a super-ministry without a proper policy review.”
It is understood that Cecil Burgess, ANC chairperson of the parliamentary ad hoc committee charged with the legislative process, is privately concerned about this centralisation of power.
Burgess said last week that State Security Minister Siyabonga Cwele had not yet completed his presentation to the parliamentary committee and it would be premature for him to comment.
But an analysis of the Bill reveals the significant shift it proposes in the status of the National Intelligence Co-ordinating Committee, which comprises the heads of all the intelligence services that collate and sift intelligence for the state and the Cabinet and identify potential threats to national security.
The proposed legislation would:
- Empower the state security minister, rather than the president, to appoint the head of the committee;
- Require the committee to report to the minister rather than to the Cabinet and the president;
- Remove the committee’s role in setting intelligence priorities;
- Require all intelligence “taskings” to be initiated by the minister or, if they come from the president, the Cabinet or its security cluster, to be routed through the minister; and
- Locate the committee in the minister’s office.
The official said the Bill would reduce the head of the committee, currently a civil servant whose powers balanced those of the minister, to a functionary reporting to the minister.
The official, pointing out that the committee’s members include the head of crime intelligence and military intelligence, asked whether the ministers of police and defence would be happy to surrender their authority to another minister. It was likely to be acceptable only if the co-ordinator of intelligence was an independent person.
The issue should be how to ensure that the intelligence services remained above politics. However, in terms of the draft Bill, they would be brought more tightly under the direct control of a politician.
“This didn’t start with the current minister. Each minister who came amended the law, but now it’s coming to that sharp point. The question is: Has the minister assumed the powers granted to the president [in terms of the Constitution] as if he is the president?”
Emphasising that the Constitution defines national security as the citizens’ freedom from fear and want, as distinct from “a state security culture”, the official warned that “the hawks, the counter-intelligence guys”, were in the ascendancy under Cwele’s leadership.
But University of Pretoria academic Laurie Nathan, who is also head of the Centre for Mediation in Africa, was not convinced that the proposed strengthening of the minister’s powers represented a sinister trend.
He said this week that the Constitution requires the president either to assume political responsibility for the control and direction of the intelligence services, or to designate a minister to assume that responsibility. In this case, the president had chosen to appoint a minister for the purpose.
Nathan said the concerns about a too-powerful minister applied equally to the president. Both were politicians and capable of abusing their powers, he said.
He could not see how the president could oversee the security services adequately, given the many demands on the first citizen’s time and attention.
“It has to be the minister who is constitutionally required to account to the Cabinet and Parliament. How can the minister be accountable without full control?”
Nathan said the committee was dysfunctional, but only because some intelligence heads were un-willing to share intelligence with other departments and did not attend its meetings.
The solution was not to make attendance a statutory obligation, as the Bill attempted to do, but for the president to make it a political issue and instruct all intelligence chiefs to attend.
Burgess dismissed objections by Democratic Alliance MP David Maynier that, by consolidating all intelligence services into one structure, the Bill represented a reversion to apartheid’s monolithic Bureau for State Security.
“We’re never going back to that clandestine thing. Here we’re working in the open; people can see what the entities will be,” he said.
But Burgess added that he thought Cwele had made a good point in his presentation to the committee — that the existing intelligence regime, comprising the National Intelligence Service and South African Secret Service, was “too big for our purposes”.
“The minister asked why we need two DGs [directors general]. His argument was that we need to rationalise, both to achieve savings and to get intelligence products to the client more quickly. To my mind there is nothing wrong with that kind of thinking.”
Burgess denied that the committee had extended the deadline for public submissions on the Bill until mid-April and then brought it forward to Friday this week. The committee had rejected a request for an extension by the Institute for Security Studies, he said.
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