SA’s new ‘spy bill’ lacks sufficient checks and balances, civilian oversight – ISS

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South Africa’s proposed new ‘spy bill’ lacks the civilian oversight mechanisms to avoid abuse of its intelligence services, whilst vastly increasing the scope of government surveillance and vetting, says the Pretoria-based Institute for Security Studies (ISS).

The General Intelligence Laws Amendment Bill (GILAB) of 2023 has sparked massive controversy, especially due to it vastly extending the concept of national security risk assessment to the private security sector, the Non-Governmental Organisation (NGO) sector and the religious sphere. The Bill also intends to allow mass communications surveillance.

The legislation will also, if passed, again create a foreign intelligence service (South African Intelligence Service) and a domestic intelligence agency (South African Intelligence Agency), after the merging of the two during the Jacob Zuma era. The idea is that it will be harder to centralise power or abuse intelligence resources if there are two directors-general heading two separate intelligence departments (as opposed to having power over the entire agency concentrated in the hands of one person who only needs to report to a minister).

If signed into law, the GILAB will require that all new security companies, religious organisations and NGOs – and their owners and personnel – be vetted by the state in addition to possible vetting of existing entities including churches, shuls and mosques.

Ostensibly to combat massive money-laundering and cash flows in the religious sector and alleged hostile and criminal infiltration of South Africa’s huge private security industry and vibrant NGO-sector, the GILAB in its present form has now also sparked fears of a rampant surveillance state.

In part intended as a remedial response, inasmuch as Intelligence structures are concerned, to findings of widespread abuse and state capture by the Zondo Commission, the GILAB is also likely to overburden and distract already overwhelmed intelligence organisations, says the ISS.

But the SA Government’s “blank cheque and shotgun” approach could see abuse by and of intelligence services and that, according to Willem Els, Senior Training Co-ordinator at the ISS, is squarely due to a lack of adequate and balanced civilian oversight in the present version of the GILAB legislation, with 31 October the Parliamentary deadline for public comment.

Els and other intelligence and national security experts told defenceWeb that without an appropriate civilian oversight framework, vast new spaces for corruption and abuse will be created by the GILAB within the intelligence community for politicians and connected officials to abuse and exploit.

Far from reaching its intended purpose, GILAB is instead likely to be a major leap towards a “surveillance state” in South Africa. “Will it be worth it when South Africa’s intelligence services will again have been captured and abused?” asked Els.

GILAB in part addresses issues raised by the Presidential High Level Review Panel on the State Security Agency (SSA) headed by present National Security Advisor Dr Sydney Mufamadi – and certain other State capture recommendations made by the Zondo commission.

Els also said the capacity of any new or existing intelligence capacity to practically perform the tasks laid down in the GILAB in its present form are cause for great concern.

Critics point to the dismal failure of present intelligence structures to vet even a high-profile person such as Andre de Ruyter, former CEO of Eskom who was forced to deploy private intelligence capacity to fight rampant corruption and theft at the National Key Point utility.

Widespread objection

Amongst those that have rejected the GILAB is the Congress of South African Trade Unions (COSATU), which said that although some of its provisions are administrative in nature (e.g. establishing the National Intelligence Academy or are necessitated by the Zondo Commission recommendations to separate domestic from foreign intelligence gathering), the Bill as a whole “is contaminated by its shameless attempts to bizarrely introduce a creeping security state through the back door.”

COSATU maintains the Bill contains two fundamentally unconstitutional provisions that need to be removed entirely.  The first is the unwieldly extension of the definition of threats to national security to include anything that may threaten “equality and equitable access to opportunities” as well as “measures and activities that seek to advance and promote peace and harmony and freedom from fear and want”. These new definitions are so vague and ill defined and will provide a blank cheque to the security services to classify all manner of issues as a threat to national security and place millions of South Africans in danger of being accused of being threats to national security and hence risk prosecution, COSATU said.

“The second constitutionally delinquent thrust of the GILA Bill is to require the state security services to vet any person who seeks to establish a non-governmental organisation (NGO), church or religious institution,” COSATU said, calling it a “naked power grab by bored state security bureaucrats…The Constitution guarantees the right of all South Africans the rights of political association, to establish trade unions, freedom of religion etc.  There is no provision in the Constitution that says these are subject to the approval of state security. NGOs include trade unions, political parties, civics, neighbourhood watches amongst others. They are called non-governmental organisations precisely because they are not subject to governmental approval.”

COSATU believes the Bill will be challenged in the Constitutional Court and will not pass constitutional muster.

South African constitutional law scholar Pierre de Vos, writing in Daily Maverick, stated the draft bill “makes for disturbing, even shocking, reading,” as many of the proposed amendments are vague, even incomprehensible, thus leaving pivotal questions (such as the criteria to decide which NGO and religious leaders would require security clearance) within the discretion of the minister.

“The bill could easily have been written by people who wish to turn South Africa into a national security state, one in which the intelligence service could be put to use to keep the governing party in power,” he wrote.

“There is no doubt that one of the main aims of the bill is to remove many of the restrictions that currently limit the ability of the Intelligence Service to lawfully spy on people and organisations inside South Africa.”

Intel Watch summarised the GILAB by stating that although there is a genuine need for the reform of the state intelligence structures in South Africa, “the GILAB raises serious concerns about freedom of association, mass surveillance capabilities, and inadequate oversight and accountability of intelligence services. The Bill is also generally poorly drafted and includes various typos and errors. Some of the problems identified here may be unintentional rather than actual policy decisions. However, given the evidence that poor policy and lack of effective oversight of the SSA (and its predecessors) helped to enable state capture and abuse of power, it is vital for civil society organisations to engage with the implications of the GILAB and advocate for meaningful reforms that safeguard democratic rights and accountability.”

Last month, Minister in the Presidency Khumbudzo Ntshavheni said the GILAB is necessary to get South Africa off an international greylist for its ineffective measures to combat money laundering. She clarified that not all NGOs would be vetted, only those that may be involved in terror financing.

Ntshavheni added that the GILAB is in line with those in major democracies, such as the United States, United Kingdom, and Germany.