Siyabonga Cwele.  Picture: FINANCIAL MAIL
Siyabonga Cwele. Picture: FINANCIAL MAIL

STATE Security Minister Siyabonga Cwele has agreed to withdraw key clauses that grant him expanded powers in a draft intelligence law. But problematic clauses allowing unrestricted eavesdropping on foreign communications remain.

At issue since the General Intelligence Laws Amendment Bill was published was that it provides for "foreign signals intelligence" which comes from "the interception of electromagnetic, acoustic and other signals, including the equipment that produces such signals, and includes any communication that emanates from outside the borders of the Republic, or passes through or ends in the Republic".

Commentators have criticised this as infringing on the right to privacy of South Africans, without getting judicial sanction, as provided for in the Regulation of Interception of Communications Act. It is also an infringement of the United Nations Universal Declaration of Human Rights to which South Africa is a signatory.

Mr Cwele told the parliamentary ad hoc committee dealing with the bill that he was prepared to remove the policy changes relating to the functioning of the National Intelligence Co-ordinating Committee from the bill in the interests of getting it approved by Parliament. Its main intention was to take the previous intelligence structures such as the National Intelligence Agency and the South African Secret Service and fuse them into a single state security agency.

Mr Cwele said the previous structures had produced mushrooming bureaucracies with duplication of corporate services and what was needed was to create one department.

Democratic Alliance MP David Maynier said the National Intelligence Co-ordinating Committee provisions were not the most controversial in the bill and asked the minister why he was changing only these and not the others.

Director of the Centre for Mediation at the University of Pretoria, Laurie Nathan has said that the provisions in the bill do not address concerns about the operations of the National Communication Centre in gathering foreign signals intelligence.

"The constitutional right to privacy is held by all persons in SA. The interception of foreign signals would infringe this right where the communication ends with any person in SA.

"The interception would also infringe the right to privacy where the communication is sent by a South African who is outside the country, since citizens do not forfeit their rights in relation to the state when they are abroad."

Mr Nathan said the constitution "declares that the Republic is bound by international agreements that were binding on South Africa when the constitution took effect, and that customary international law is law in the Republic unless it is inconsistent with the constitution or an act of Parliament".

Mr Cwele will present his revised bill to the parliamentary ad hoc committee at the next meeting later this month.