‘Spy bill’ may lay the ground ‘for a return to state capture’

The General Intelligence Laws Amendment Bill, which proposes new regulations related to security vetting and spying, has drawn strong criticism from civil society organisations. Picture: Facebook

The General Intelligence Laws Amendment Bill, which proposes new regulations related to security vetting and spying, has drawn strong criticism from civil society organisations. Picture: Facebook

Published Jan 29, 2024


Durban — A “spy bill” which proposes new regulations related to security vetting and intelligence gathering has drawn strong criticism from civil society organisations.

According to the Ad Hoc Committee for the General Intelligence Laws Amendment Bill (Gilab 2023), it seeks to amend the National Strategic Intelligence Act No 39 of 1994, the Intelligence Services Act No 65 of 2002, the Intelligence Services Oversight Act No 40 of 1994, and other relevant legislation.

Through these amendments, some of the aims Gilab 2023 aims to achieve is to undo the establishment of the State Security Agency (SSA) in line with the recommendations of the High Level Review Panel (HLRP); establish a South African Intelligence Agency, which will have a domestic focus and be responsible for counter-intelligence and intelligence gathering functions; establish a South African Intelligence Service responsible for foreign intelligence gathering; clarify the mandate of the two Intelligence Services that are to be established; and re-establish the South African National Academy of Intelligence (Sanai), responsible for intelligence training.

It also wants to provide a legislative mandate for Bulk Interception, in compliance with a Constitutional Court judgment; provide a regulatory framework for compliance monitoring, co-ordination, and alignment of intelligence activities; the provision of regulation of cybersecurity, protecting information and intelligence; enabling the Minister to prescribe issues of accountability and control of Intelligence Services in line with Section 209 of the Constitution and to provide for matters related to former members of Intelligence Services.

A range of civil and religious society groups jointly expressed their concern at the threat posed to South Africa’s democracy by Gilab.

In a statement, the group said that it shared the view that the bill would bring an intrusion of state security agencies into society in a way that would undermine the country’s democracy, “clear the way for continued over-reach by these state agencies and lay the ground for a return to state capture”.

The group said it was concerned that if passed in its current form the bill would give state intelligence agencies the power to do mandatory security vetting of any “person or institution of national security interest”.

It added that the bill’s definition of a “person or institution of national security interest” was so broad that it potentially gave the state the power to vet any private individual or institution – including non-profit organisations and faith-based organisations.

“Security vetting is extremely intrusive and this power is wide open to abuse,” read the statement.

The group said the bill would fail to provide safeguards to prevent the abuse of secret funds that were a key element of state capture at the State Security Agency. This opened the door to continue illegal expenditure and mismanagement of funds from the secret service account.

“Together, we think the bill represents an attempt to interfere with civil society and religious institutions to an extent that would threaten our rights to free expression, to organise and assemble, to fully engage in civil and political life, and to religious and cultural practice.

“Civil society was and remains a key bulwark against state capture, and now we are seeing an attempt to exert control over these institutions,” said the group that include AmaBhungane Centre for Investigative Journalism, Campaign for Free Expression, Centre for Applied Legal Studies, University of the Witwatersrand, Centre for Child Law, Freedom of Religion South Africa (FOR SA), FW de Klerk Foundation, Helen Suzman Foundation, Intelwatch and Legal Resources Centre (LRC).

Philip Rosenthal, director of ChristianView Network, said the bill included “vetting” those who wanted to establish religious and non-profit organisations who protested strongly while the November 23 draft changed these offensive words but left the wording broad so it was not clear if the risk was removed.

“During the apartheid era, there was unacceptable surveillance with spies infiltrating religious organisations, security police files on peaceful religious leaders, later used to bully them. We don’t want this to happen again. Religious organisations are not asking for exemption from investigation if there is a reasonable warrant, but the idea of 'vetting' all of them is ridiculous.

“The May draft said state security can co-opt the private security industry (S5c). The November draft tones this down to co-opting the Private Security Industry Regulator. How will this work and what will be the limits? But does that mean they can access data of private security for example licence plate movements registering on security cameras? If so, they could track our movements,” said Rosenthal.

He said another concern was that state intelligence could gather departmental intelligence at the request of any state department.

“But there must be limits on this or else a government department can spy on non-profit organisations that may be politically opposed. State intelligence will be allowed to engage in mass surveillance,” said Rosenthal.

Willem Els, senior training co-ordinator at the Institute for Security Studies, said the bill carried controversial amendments.

“A challenge that we have is with oversight. There is no process for appeals. What happens if you are vetted and you are a church or NGO and they find you unfit to register, where do you appeal? The act doesn’t make provision for that,” said Els.

The Gilab Ad Hoc Committee, which is currently holding public hearings, has to report to the National Assembly by March 1.

Sunday Tribune