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Part one: the development of a new intelligence dispensation in the RSA.

1. INTRODUCTION

The advent of multi-party democracy in the Republic of South Africa (RSA) during the 1990s included the challenge of integrating the various intelligence agencies with diverse ideological backgrounds of the former South African government, the so-called "independent homelands" and the national liberation movements. These were the official National Intelligence Service; the Intelligence Services of the TBVC states (Transkei, Bophuthatswana, Venda, Ciskei); as well the Department of Intelligence and Security of the African National Congress (ANO) and the Security Service of the Pan-Africanist Congress (PAC). This integration process, however, extended beyond mere institutional amalgamation. It culminated in a new intelligence dispensation that incorporated the reconsideration and redefinition of the fundamental assumptions of strategic intelligence, as well as the extensive reform and reconstruction of the organisation, focus and functioning of the South African intelligence community. Rather than being the pro duct of a singular comprehensive effort, incremental change and reform was introduced over a period of several years.

The initial thrust of this process (see Part 1) pertained to transitional arrangements, in principle based on new strategic thinking about intelligence, that paved the way for institutional reform. This phase had its origins in the negotiated political settlement that can be traced back to the late-i 980s, but more specifically in the proceedings of the Convention for a Democratic South Africa (CODESA) from 1991 to 1993. This included the establishment of a number of working groups and subgroups, one of which dealt with security issues, including intelligence. The new direction of strategic intelligence was, however, outlined in Ready to Govern, the ANO policy guidelines for a democratic South Africa, adopted at the National Conference of the movement during May 1 992. In essence, these guidelines proposed the democratisation of intelligence and intelligence institutions. These intentions were taken a step further by the Transitional Executive Council Act, 1993 (Act No. 151 of 1993) that inter alia made provi sion for the establishment of Sub-council on Intelligence. This sub-council, amongst others, had to adopt a basic set of principles on intelligence to serve as a basis for the creation of a national intelligence capability in a new democratic dispensation; make proposals regarding suitable legislation relating to the practice of intelligence in a new political dispensation; and facilitate the transition to a future intelligence dispensation. The agreement on a set of Basic Principles facilitated by the Sub-council on Intelligence, laid the basis for the subsequent transformation and democratisation of the intelligence community.

Following the successful implementation of the core outcomes of the negotiated settlement, namely the coming into effect of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) and following the election, the transfer of political power and the establishment of a Government of National Unity in 1994, attention turned to transforming national strategic intelligence. Although Chapter 14 on Police and Defence of the transitional 1993 Constitution made reference in passing (Art 218(1 )(f)) to crime intelligence in the context of policing, the issue of intelligence and the intelligence service was not specifically addressed. This only followed later, framed by the Intelligence Services Act, 1994 (Act No. 38 of 1994); the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994); the White Paper on Intelligence, 1995; the White Paper on Defence, 1996; and the final Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996). The primary areas of change and reform were the a ssumptions underlying intelligence, the organisational and functional dimensions of the intelligence services, and co-ordination and control within the security community of South Africa.

Since value-issues were involved, the reshaping and transforming of intelligence in South Africa was not only a matter of organisational restructuring, but also included distinct normative dimensions. These found expression in basic assumptions regarding national strategic intelligence in South Africa (see' Part 2), covering the concept, philosophy, basic principles and guidelines of intelligence, outlined in the White Paper on Intelligence, 1995. In addition, the establishment, control, powers, functioning and monitoring of the intelligence services were also instilled with a constitutional basis, being incorporated into the Constitution of the Republic of South Africa, 1.996 (Act No. 108 of 1996). These assumptions mainly related to extending the security mission of intelligence from the state to the citizenry in a non-partisan manner; co-ordinating and integrating intelligence; enhancing transparency, accountability and control; and providing legislative sanction and institutional checks and balances.

The organisational restructuring (see Part 3) was based on the Intelligence Services Act, 1994 (Act No. 38 of 1994) and the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994), supplemented by the White Paper on Intelligence, 1995 and to a lesser extent the White Paper on Defence, 1996. This restructuring essentially made provision for civilian intelligence that included domestic, counter-, departmental and foreign intelligence and the establishment in 1 995 of the National Intelligence Agency (NIA), the South African Secret Service (SASS) and the National Intelligence Coordinating Committee (NICOC); military (defence) intelligence within the Intelligence Division of the South African National Defence Force (SANDF); crime intelligence (including counter-intelligence measures) within the South African Police Services (SAPS); and the establishment in 2001 of an advisory structure with a limited mandate in the form of the Presidential Support Unit (PSU) that is to serve the Presidency, and the Ministr ies for Intelligence Services and Foreign Affairs as clients.

The functioning of the civilian intelligence community (see Part 4) relates to the control and co-ordination of intelligence. This includes mechanisms for parliamentary oversight, inter alia in the form of a Joint Standing Committee on Intelligence (JSCI) for Parliament and two Inspector-Generals, provided for by the Intelligence Services Control Act, 1996 (Act No. 40 of 1996); for co-ordination in the form of NICOC that is to report to Cabinet and Parliament; and for parliamentary budgetary control. During the course of the past eight years these formal arrangements have been explicated in numerous addresses and briefings by public office bearers, that provide further insight into official perceptions regarding the functioning of intelligence in South Africa.

This course of events is indicative of a broadened understanding of intelligence and its scope in an era of domestic reform and post-Cold War globalisation. It is furthermore contextualised by South Africa's need for democratisation and its commitment to regional and sub-regional security and development priorities, as an African country and part of the South. The process of intelligence reform and transformation has opened a new chapter in the history of the South African intelligence community and has produced a more creative and far-sighted approach to intelligence. It has culminated in the establishment of a new intelligence dispensation that is to provide a secure environment for all South Africans through sustained and consistent effort. Hopefully national strategic intelligence in, and the intelligence community of South Africa, will evolve in future to meet changing national priorities alongside the goals of reconstruction, development and reconciliation. The new intelligence dispensation and the offi cial perceptions underpinning it, as subsequently illustrated, nevertheless represent a significant departure from past approaches and structures and provide a more democratic framework for intelligence as one of the oldest professions.

2. SELECTED EXCERPTS RELATING TO STRATEGIC INGELLIGENCE: 1992-1993

Ready to Govern, ANC Policy Guidelines for a Democratic South Africa adopted at the National Conference, 28-31 May 1992 *

The ANC believes that the role of the national intelligence agency shall be to gather; collate and evaluate information that pertains to the security of the state and its citizenry. The role of the intelligence service shall be to act in the interests of the country as a whole. The principles of intelligence shall be the following:

-- The national intelligence agency will be responsible for gathering, collating and 'evaluating strategic information that pertains to the security of the state and the citizenry;

-- The national intelligence agency shall respect the rights of all South Africans to engage in lawful political activity;

-- Intelligence activities shall be regulated by relevant legislation, the Bill of Rights, the constitution and an appropriate Code of Conduct;

-- All intelligence institutions will be accountable to parliament and subject to parliamentary oversight;

-- The public shall have the right to information gathered by any intelligence agency subject to the limitations of classification consistent with an open and democratic South Africa;

-- The national intelligence agency shall be politically nonpartisan;

-- The national intelligence agency shall guard the ideals of democracy, non-racialism, non-sexism, national unity and reconciliation and act in a non-discriminatory way;

-- The composition of the national 'intelligence agency shall reflect the racial and gender composition of South Africa, and affirmative action programmes shall be implemented to this end.

Transitional Executive Council Act, 1993 (Act No. 151 of 1993) -- Assented to 18 October 1993 *

20. Powers and duties in regard to intelligence -- (1) The Council shall, for the purpose of attaining its objects, have the following powers to be exercised through its Subcouncil on Intelligence:

(a) To acquaint itself, subject to the other provisions of this Act, with the nature, objects and functioning of every intelligence service or structure in South Africa (hereinafter in this section referred to as "service");

(b) to establish a Joint Co-ordinating Intelligence Committee (hereinafter in this section referred to as "the Committee"), comprised of the head or a duly authorized senior representative of every service, which Committee--

(i) shall monitor and liaise with all services in order to promote the objects of the Council, taking into account matters of common concern in relation to the Subcouncil on Law and Order, Stability and Security and the Subcouncil on Defence; and

(ii) may, if it considers it necessary to do so, establish a management structure which shall manage the affairs of the Committee;.

(c) to adopt a set of basic principles on intelligence, which could also serve as a basis for the creation of a national intelligence capability in a new democratic dispensation;

(d) to formulate a code of conduct which shall be binding on all members of all services during the period of transition and which could serve as a basis for an official code of conduct in a new democratic dispensation;

(e) to monitor, in consultation with the Committee, the compliance of all services and their members with the said code of conduct;

(f) to investigate, or order the investigation by the Committee of, any matter (including complaints by members of the public) relating to the objects of the council or the said code of conduct;

(g) to require the investigation by, or under the supervision of, the Committee of any activity or action by a member of any service which is alleged to have or to have had an adverse effect on the attainment of the objects of the Council or the said code of conduct and, in consultation with the appropriate Minister or the head of that service, as the case may be, where appropriate, require the suspension, with full pay, of such member pending the outcome of the investigation;

(h) to request and obtain, subject to the other provisions of this Act, on a regular basis from all services, via the Committee, evaluated information on the overall security situation in the country, highlighting threats, actions or events that may adversely affect the attainment of the objects of the Council: Provided that nothing in this subsection shall authorize the disclosure of a document or information relating to the above matters but which consists of unevaluated information;

(i) to request and obtain, subject to the other provisions of this Act, via the Committee, from any service evaluated information on matters of special concern or urgency: Provided that such service shall--

(i) be informed beforehand what will be required of it;

(ii) be given reasonable time to prepare the required information and its presentation in that regard; and

(iii) have the right to be assisted or represented by persons duly authorized to do so;

(j) to make recommendations on steps to ensure that a service does not perform or carry out any act or operation likely or intended to undermine the attainment of the objects of the Council;

(k) to make proposals regarding suitable legislation relating to the practice of intelligence in a new political dispensation, including suitable mechanisms of accountability and political supervision; and

(I) to facilitate the transition to a future intelligence dispensation by commissioning research and making proposals in this regard.

(2) The Subcouncil shall in the exercise of its powers and the performance of its duties--

(a) taking into consideration the sensitive nature of intelligence, deal with intelligence matters in a manner conducive to the national interest and not sectional interests; and

(b) recognize that the day to day management of every service . remains the responsibility of the relevant Minister or head of such service, and that all services shall during the period of transition, subject to section 3, continue to fulfil their duties to their respective principals.

(3) (a) If there is any dispute in relation to an investigation referred to in. subsection (1 )(f) or (g), the matter shall, having regard to the sensitive nature of intelligence, be referred to the appropriate Minister or head of the service concerned in order to attempt to resolve the issue.

(b) If the issue is not so resolved the matter shall be referred to the Special Electoral Court for determination.

(4) Any power conferred upon the Subcouncil by this Act and which overlaps with any power conferred upon the Subcouncil on Law and Order, Stability and Security or the Subcouncil on Defence, shall be exercised in conjunction with such other sub-council.

* Selected excerpts.
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Title Annotation:Republic of South Africa
Publication:Institute for Strategic Studies
Article Type:Topic Overview
Geographic Code:6SOUT
Date:Nov 1, 2002
Words:2252
Previous Article:Preface.
Next Article:Part two: basic assumptions regarding strategic intelligence in the RSA.
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