Civil society organisations warn that sweeping new Intelligence Bill threatens democratic rights
CFE is calling on all NGOs and religious organisations to sign a joint statement against the new General Intelligence Laws Amendment Bill (GILAB). The Bill is 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.
Read and sign our statement below:
As representatives of a wide range of civil and religious society, we have come together to express our grave concern at the threat posed to South Africa’s democracy by the General Intelligence Laws Amendment Bill 2023 (GILAB), approved by Cabinet and introduced in Parliament [this week]. We represent a cross-section of sectors and opinions, but share the view that this Bill will bring an intrusion of state security agencies into our society in a way that will undermine our democracy, clear the way for continued over-reach by these State agencies and lay the ground for a return to state capture.
In particular we are concerned that, if passed in its current form, the Bill will:
These are our key concerns, but not the only ones. 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.
We, jointly and severally, call on Parliament to ensure the Bill is either withdraw or redrafted fully to bring it in line without the Constitution and to avoid the embarrassment of a constitutional challenge. And we call on all civil society bodies to join us in this drive to defend our democracy.
To endorse this statement, please sign this form:
Briefing note: The General Intelligence Laws Amendment Bill (GILAB)
The General Intelligence Laws Amendment Bill (GILAB) is a new bill amending the powers and mandate of South Africa’s state intelligence services.
The Bill was approved by Cabinet in May this year. At the time of this writing (21 August 2023), the GILAB had yet to be tabled in Parliament. Once tabled, the National Assembly will create an ad hoc committee to consider the Bill and issue a call for public comments.
While there is an urgent need to reform the laws governing South Africa’s intelligence services, the Bill has sparked serious concerns about its potential impact on civic participation, lack of protections from mass surveillance, and lack of provisions for improved oversight and accountability of the intelligence services. This briefing note unpacks some of these themes.
What the Bill is meant to do
The GILAB’s stated purpose is to implement recommended reforms to South Africa’s intelligence agencies flowing from the Judicial Commission of Inquiry into Allegations of State Capture (the Zondo Commission) and the 2018 High Level Review Panel on the State Security Agency. The Bill is also meant to address the findings of the Constitutional Court in the amaBhungane judgment, which struck down parts of the RICA surveillance law.
The Bill’s provisions would amend three existing laws relating to intelligence structures: the National Strategic Intelligence Act, the Intelligence Services Act, and the Intelligence Oversight Act.
One of the Bill’s key features is its provision for the reversal of a controversial Zuma-era proclamation that merged South Africa’s two national intelligence agencies (one domestic, the other foreign) to form the SSA. That centralisation of power was put into law in a previous GILAB, which Parliament passed in 2012. Following recommendations by the Review Panel and the Zondo Commission, the new GILAB splits the SSA into two intelligence agencies once more: the South African Intelligence Service (focused on foreign intelligence) and the South African Intelligence Agency (focused on domestic intelligence).
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).
What’s wrong with the GILAB?
1. EXPANSION OF THE SSA’S VETTING POWERS
Summary: The Bill would expand the agencies’ security vetting powers to include vetting of people seeking to establish and operate non-profit organisations, religious organisations, and private security companies. This raises concerns about freedom of association and the risk of surveillance of civil society organisations, especially given the government’s historical allegations of critical civic groups being national security risks or the proxies of foreign governments.
2. EXPANSION OF MASS SURVEILLANCE CAPABILITIES
Summary: The Bill attempts to establish in law the SSA’s mass surveillance capabilities through the National Communications Centre (NCC). This was necessitated by the Constitutional Court’s declaration, in the amaBhungane judgment, that the NCC’s bulk surveillance operations were unlawful. However, although the GILAB is an attempt to legalise the NCC’s operations, it does not provide for the requisite protections for privacy and freedom of expression, nor for meaningful oversight of the NCC. It also creates a messy parallel policy process at a time when state surveillance legislation is undergoing crucial reforms.
3. FAILURE TO DELIVER ON OVERSIGHT AND ACCOUNTABILITY
Summary: There is an urgent need for reforms to boost oversight and accountability in the State Security Agency to prevent further abuses of power and corruption. Yet the GILAB fails to deliver these reforms.
4. EXPANDING THE DEFINITIONS OF NATIONAL SECURITY
Summary: The Bill expands the definitions of national security and intelligence, which would effectively expand the reach of South Africa’s intelligence agencies into all aspects of public life. This flies in the face of recommendations and best practice that national security powers should be limited and narrowly defined.
There is a genuine need for the reform of the state intelligence structures in South Africa, but 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.