R Kasrils: Debate on Joint Standing Committee on Intelligence
report

21 September 2006

Madam Speaker, honourable members:

Our Constitution requires our intelligence services to act lawfully and in
accordance with the spirit of the Constitution.

Their allegiance is to the State and citizens of our country and their
mandate is to act in the national interest by contributing to the security and
well-being of all our people.

Because of the inherent risk of abuse of power, it is essential that the
services should themselves be subject to extensive controls and oversight by
the elected and duly appointed civil authority.

The events of the past year have raised many questions not only for the
intelligence services but for the oversight structures.

The JSCI correctly noted in their report tabled before this House today that
this investigation was "unprecedented in the history of South African
intelligence" and that the IG concluded a complex investigation in a diligent
manner.

There have been extensive meetings between the JSCI and the IG as well as
myself in furtherance of this report. I commend the JSCI for its commitment and
for their hard work in preparing their report.

The IG made the following findings:
* that the National intelligence Agency (NIA) put Mr Macozoma under
surveillance without following their own internal directives
* that the reasons given by the former Director-General (DG) were without
substance and that intelligence which he claimed to have in his possession did
not exist
* that the former DG instructed the NIA to intercept the telephones of
prominent South Africans including that of the African National Congress (ANC)
Chief Whip as well as the parliamentary offices of the Democratic Alliance
(DA)
* that the e-mails which were used by the former DG as a justification for the
NIA to embark on unlawful operations were fabricated.

The blatant disregard by the former DG and certain NIA members for the
Constitution and the rights of those violated by their conduct needs to be
strongly condemned.

The finding by the IG that the former DG deliberately misled and lied to
both the Minister and the IG about the nature of the surveillance of Mr
Macozoma is a shocking finding. The former DG refused to co-operate with the IG
and concealed his involvement in the e-mail scam. The Oversight Act makes it
clear that there is no justification for any member of the intelligence
services to withhold information from the IG.

However, one chooses to frame the events or the past year it is clear that
members of NIA instructed by the former DG broke the law and undermined the
Constitution.

* Former DG was interviewed by the JSCI

The former DG was interviewed by the JSCI. I have not been provided with
feedback on the details of the discussions and the report of the JSCI does not
indicate whether or not he was asked to account for his conduct and if so, what
explanation he provided.

* Masetlha's rights were not violated

I would like to use this opportunity to correct the misconception that
Masetlha's rights were violated during the course of the IG's investigation and
that he was not afforded an opportunity to provide his version of events.

The IG interviewed Masetlha formally only once at the beginning of the
investigation. At this meeting Masetlha deliberately misled the IG and lied
about the circumstances surrounding the Macozoma surveillance.

Following the extension of the terms of reference of the IG's investigation,
Masetlha was asked to provide information related to his knowledge of Project
Avani. He refused to co-operate unless his legal representatives were present
and subsequently brought an application in the High Court to compel the IG to
allow his lawyers to be present.

There is no precedent on the rights of employees both in the private and
public sectors to outside legal representation in internal processes even when
in the case of disciplinary proceedings, the outcomes of those proceedings may
result in action being taken against the employees.

* Constitutional right to legal representation

The constitutional right to legal representation applies only to accused
persons in criminal proceedings.

Despite this the IG agreed that Masetlha's lawyers could be present to
advise him of his rights and that they could observe the proceedings.

Masetlha's lawyers argued for the right to participate actively in the
inquiry and when no agreement could be reached on the nature of their
involvement, the IG decided not to interview Masetlha since by that stage he
had sufficient information to complete his inquiry.

* Audi alteram partem

The Committee questions the decision of the IG to finalise his report
without interviewing Masetlha's version of events and argues further that the
audi alteram partem principle was not applied.

The phrase means, literally, to hear the other side and stands for the
principle that no one should be condemned without a hearing in which they are
given an opportunity to respond to the accusations against them.

Masetlha had ample opportunity to explain his involvement in the e-mail
scam. He chose not to do so.

Masetlha was at no stage an "accused person". His co-operation was required
because by virtue of his position as DG at the time, he was in possession of
information relevant to the IG's inquiry.

There can be no justification for an accounting officer to refuse to
disclose information at his disposal by virtue of his official position to a
person authorised to receive such information.

Had Masetlha had nothing to hide, he would surely have had no difficulty in
explaining his role in an official operation of the NIA for which he as DG was
responsible and accountable.

* JSCI does not question the substantive findings

Despite the comments and criticisms of the JSCI in respect of some of the
procedural aspects of the IG's investigation, the committee does not question
the substantive findings. This is because the IG's report was informed by a
sound investigation for which he and his staff should be whole heartedly
congratulated.

We welcome the finding by the JSCI that any person who acts in contravention
of the prescribed procedures in the interception legislation is guilty of an
offence and should be prosecuted.

We welcome further the finding that surveillance operations conducted by the
NIA must be done in accordance with internal procedures.

The observation by the JSCI that there is insufficient financial control
over the management of the discretionary fund of the DG of NIA confirms the
finding of the former DG had authorised payment in the amount of R150 000 to
Muzi Kunene. Kunene has since been charged with defrauding the NIA.

* Response to procedural issues raised by the JSCI report

I will turn now to some of the specific issues raised by the JSCI in their
report although time does not permit a detailed response.

- Inclusion of legal advisor in the first phase

The JSCI questions the inclusion of my legal advisor in the first phase of
the investigation. They found this problematic because they argue that it could
have created a perception that the investigation was not being conducted
independently and impartially.

My legal advisor assisted the IG in the first month of the inquiry providing
secretariat support. She was included at the request of the IG given the
shortage of capacity in his office at the time.

There is nothing in the Act that prohibited this and her presence in no way
undermined the integrity of the inquiry.

When the JSCI questioned her involvement I decided to immediately withdraw
her from the inquiry out of sensitivity for their concern, while pointing out
that her involvement had not been irregular in terms of the Oversight Act.

- Referral in terms of section 7(7)(c)

Section 7(7) of the Intelligence Services Oversight Act sets out the
functions of the IG.

Section 7(7)(cA) provides for the IG to receive and investigate complaints
from members of the public on abuse of power or transgressions of the
Constitution and the law.

In addition section 7(7)(c) allows for the IG to perform all functions
designated to him by the President or the Minister.

The JSCI report suggests that the investigation should have been referred to
the IG in terms of section 7(7)(cA) of the Oversight Act and not section
7(7)(c) and that this in some way undermined the impartiality of the
process.

I cannot agree with this view.

The complaint by Mr Macozoma was not a complaint in the context of section
7(7)(cA). Mr Macozoma did not complain to the IG, he complained to me.

My immediate reaction was to obtain an explanation and report from the DG. I
found his report to be totally unsatisfactory and it raised my suspicions
regarding possible misconduct in NIA. As a result I requested the IG to
investigate the matter since I felt I could not rely on NIA to investigate
itself.

- Report back by the IG to the Minister

Section 7(7)(f) of the Oversight Act provides further for the IG to report
back to the Minister or the President on those matters referred to him in terms
of the Act.

The fact that I referred the matter to the IG and that he in turn reported
back to me on his findings and recommendations is perfectly consistent with the
Act.

As Minister I am charged with overall accountability for the functioning of
the civilian intelligence structures and am obliged at all times to act in the
public interest. By referring the matter to the IG I acted in the public
interest and within my constitutional responsibilities as Minister.

- Finalisation of regulations

Section 8(1) of the Oversight Act provides for the Minister in consultation
with the JSCI to make regulations regarding the performance of the functions of
the IG.

The committee notes that the absence of regulations to guide the IG in
discharging his oversight mandate and correctly recommends that their
finalisation will be fast-tracked.

The authority to investigate allegations of abuse of power or transgressions
of the Constitution and applicable legislation is conferred on the IG by the
Oversight Act. Because the Act is silent on the precise procedure to be
followed by the IG in conducting any investigation, he was simply obliged to
conduct his inquiry fairly and in accordance with principles of administrative
justice.

The committee has rightly highlighted this issue as an area that needs
urgent attention. I can assure this House that the process of finalising the
regulations is receiving the urgent attention of both the IG and myself in
consultation with the JSCI.

- Process followed by the Minister in suspending Njenje and Mhlanga

The JSCI contends that individuals implicated in misconduct in the IG's
report should have been dealt with in terms of NIA's internal disciplinary
provisions as set out in Chapter XXVlll of the Intelligence Service
Regulations. It argues that this omission on the part of the Minister resulted
in members resorting to court applications to enforce their rights.

I explained to the committee that I acted in terms of section 19 of the
Intelligence Services Act which allows the Minister to suspend or transfer
members in the public interest, provided that the President is consulted if the
suspended member is at the level of a Deputy Director-General (DDG). The legal
advice I received was that it was appropriate for me to act in terms of this
provision as long as I acted fairly and within the provisions of the promotion
of Administrative Justice Act.

- Classification/declassification of report of the IG

The report of the JSCI criticises the IG for what it describes as his
decision to "declassify" his report without following prescribed procedures.
This statement is incorrect. The IG's report has not been declassified and the
full report has not been publicly released.

The IG released only an edited version of the report following consultation
with the President and myself and on the instruction of Cabinet.

As I have explained to the committee, section 8 (b) of the Intelligence
Services Oversight Act provides for the IG to disclose any intelligence or
information after consultation with the President and the Minister.

The JSCI report contains a number of recommendations intended to ensure
greater adherence by the intelligence structures to constitutional values.

- Authoritarian versus civilian intelligence culture

The JSCI has noted with concern the fact that some members of the
intelligence services were afraid to disobey what they considered to be
unlawful instructions from their immediate managers for fear of
intimidation.

I am pleased to report that a training curriculum aimed at instilling an
appreciation of the law and the importance of human rights in the conduct of
intelligence is being developed and will be piloted next year.

In addition, I intend tabling for discussion in the JSCI a regulation on the
co-ordination of intelligence that sets out in greater clarity the process and
criteria for identifying subjects of investigation and the authorisation
required.

The JSCI is a statutory committee provided for in terms of the Oversight
Act. This provides the opportunity for ongoing engagement between the JSCI and
the Executive Council (ExCo) on all aspects of their report. I agree with the
recommendation that this House notes the committee report.

In conclusion I would like to thank the IG and the JSCI for their commitment
to ensuring compliance by our intelligence structures of the law and the
Constitution. I believe we emerge from these challenges stronger than ever.
Certainly there are lessons to be learned about how to strengthen our oversight
functions.

I can report that much is being done to deepen understanding of the
Constitution and the law within our intelligence services. This has been of
positive value in uplifting their morale. I am particularly satisfied with the
commitment of the new leadership of the NIA.

Above all the people of our country can be confident that the decisive
measures taken to stamp out the abuses of power that unfortunately occurred
will ensure that our services respect the law.

Issued by: Ministry for Intelligence Services
21 September 2006
Source: Ministry for Intelligence Services (http://www.intelligence.gov.za)