Spy Bill “missing the bus” on preventing political abuse – ISS

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Despite recently narrowing its scope and abandoning vetting of non-governmental organisations, South Africa’s controversial “Spy Bill” still does not address the core challenge of civilian oversight to prevent political abuse and the continuation of State Capture of its intelligence services, experts say.

On the eve of the public participation phase of its legislative journey in 2024, an unabated litany of criticism and warnings by security and intelligence experts, supported by a broad swathe of civil society, grows against the General Intelligence Laws Amendment Bill of 2023 (GILAB) in its latest iteration.

“In the wake of State Capture and severe abuse by political parties, the outcome of this legislation was supposed to make the statement ‘never again’. This is the golden opportunity to rectify the wrongs of the past, but we seem to be missing the bus,” according to intelligence expert Willie Els.

GILAB was introduced nine months late to Parliament by Minister in the Presidency Khumbudzo Ntshavheni in early 2023. She is now accused of attempting to rush the bill before the 2024 General Election.

Ntshavheni claims GILAB is not an attempt to create a surveillance state in South Africa but has gone on to sharply accuse the business sector of seeking to “destabilise the State”, a move some experts believe is in reality a spur to the present factionalised intelligence services to harass and monitor outspoken anti-government business leaders as elections approach.

In its most recent iteration, churches and NGOs are excluded from monitoring following vociferous civil society objections, but security companies remain targets for security clearances and surveillance. However, criticism of vague and vapid terminology presently in the draft legislation, even on basic definitions such as “intelligence” is also growing.

The core issue of institutionalised civilian oversight – or rather the complete lack of it – has still not been addressed in the latest legislative version along with crucial checks and balances on the powers of politicians such as Ntshavheni to meddle politically in intelligence operations.

Even South Africa’s Inspector General of Intelligence (IGI) Imtiaz Fazel has warned that GILAB should seek to strengthen oversight of South Africa’s intelligence structures, especially the IGI through pro-active law making and definitions.

It seems obvious that the SA Government plans to limit public participation in the legislative development of GILAB to maintain the ability to continue the abuse of intelligence services for personal and political gain, said Els, a senior manager at the Pretoria-based Institute for Security Studies (ISS).

“Minister Ntshavheni is setting up herself and other future ministers and politicians as judge and jury within GILAB because there is no civilian oversight and most tellingly, no appeal mechanism in the legislation. This creates impunity for politicians and their official minions to abuse intelligence structures,” said Els.

Although the term State Capture is a relatively recent one, in truth all South Africa’s  intelligence structures were politically captured as far back as 1994 when police, military and civilian intelligence structures were officially  “integrated” – taken over by a flood of ANC cadre deployment with a smattering of other liberation forces.

This situation has continued for almost three decades to the present day – with dire and disastrous results for policing and military structures – and is exactly what GILAB is supposed to counter but apparently is de facto intending to keep entrenched, said Els.

“Even being charitable, Minister Ntshavheni and her State Security Agency (SSA) officials seem completely out of their depth especially given the past abuse of intelligence services by both apartheid and democratic governments in the past and up to the present day,” he said.

GILAB is a bill that aims to overhaul the legislative framework for national security and intelligence services in South Africa.

It proposes to dis-establish the SSA and reconfigure the intelligence services into four entities: separate foreign and domestic intelligence services, a National Communications Centre (NCC) and the establishment of a SA National Academy of Intelligence (SANAI).

The proposed legislation also intends restricting former intelligence officials from using their secret knowledge for various purposes.

GILAB also introduces new definitions of key terms such as “national security”, “potential opportunity”, “hostile interests”, “critical infrastructure” and “cyber-security”. These definitions are supposed to provide clarity and guidance for intelligence activities, but some critics argue they are too broad and vague and could be used to justify excessive surveillance and interference.

Recently, the term vetting was dropped from the legislation to be replaced by the broad concept of “security competence”. The legislation now also refers to “opportunities” to improve national security, which opponents argue gives space for abuse by politicians.

GILAB has been met with mixed reactions from various stakeholders from its outset, including civil society, religious groups, opposition parties, human rights organisations and former intelligence officials. Some welcomed the bill as a necessary step to modernise and strengthen the intelligence sector, while others expressed concerns about its potential impact on democracy, privacy, accountability and oversight.