Experts sound the alarm over South Africa’s new ‘spy bill’

 ·14 Feb 2024

With the window for public comment on the controversial General Intelligence Laws Amendment Bill closing tomorrow (15 February), experts are worried that the government will not pay attention to the thousands of submissions made by the public.

The government published the bill back in November 2023 which, among amending 12 other security laws, is aimed at countering the erosion of the country’s State Security Agency (SSA) by overhauling the agency.

This follows the findings of the High-Level Review Panel and the Commission of Inquiry into State Capture which concluded that the agency had been repurposed to keep former president Jacob Zuma and his allies in power during his presidency.

The bill indicates, among other key changes, that SSA will be replaced by two separate agencies with different mandates: one for foreign intelligence (South African Intelligence Service), and the other for domestic intelligence (South African Intelligence Agency).

Misuse of power

However, experts worry that the bill serves to rather create a national security state to keep citizens toeing the line rather than protecting them.

Law professor Pierre de Vos said that “the bill signals a radical change in how the government – at least formally – views ‘national security’, and in the role it believes intelligence agencies should play in protecting ‘national security’.”

De Vos said that if the bill is passed, “it will vastly expand the categories of people subject to security clearance and will grant additional discretionary powers to the minister, often in vague and general terms.”

Other notable experts warned that the new laws would be abused.

“The new mandates given to the two new agencies and the definitions they rely on are so broad that abuse of their powerful spying capabilities is almost a foregone conclusion,” wrote Professor of Digital Society, Jane Duncan.

De Vos agreed with this, saying that one of the main aims of the bill is likely 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, monitoring people who display opposition to or criticise the state, and identifying them under the banner of national security.

“The intelligence service could be put to use to keep the governing party in power,” De Vos said.

Broad definitions

Echoing de Vos, Duncan warned that the ‘over-broad’ definitions leave room for abuse of power.

“The bill says the new agencies will be responsible for collecting and analysing intelligence relating to threats or potential threats to national security in accordance with the constitution… [but the] definition is extremely expansive [as it] allows the intelligence services to undertake any activity that could advance South Africa’s interests,” said Duncan.

The experts urge that such capabilities should only be used in circumstances when the country is under legitimate threat.

To normalise their use in everyday government functions threatens democracy,” added Duncan.

“Previously, the ANC government’s formal position was that national security was a matter of protecting the constitutional order; [now] the bill views it as a matter of advancing supposed ‘shared values’ and interests and going after those who make this difficult,” said de Vos.

Experts are calling on the government to narrow the scope of the two new agencies that are being proposed to rather focus on domestic and foreign threats of organised violence against society, such as terrorism or genocide.

They believe it is important to amend the proposed legislation to maintain its focus on protecting broader society, rather than just the state. This is because vague and broad mandates could create, as experts describe, a “surveillance state.”

To comment on the bill, it must be done before the end of working hours on 15 February, through:

Read: The big danger of South Africa’s new surveillance laws

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