South Africa’s new ‘spy bill’ still raising red flags

The General Intelligence Laws Amendment Bill (GILAB) that is currently sitting in the National Council of Provinces (NCOP) is set to undergo another process of public participation – but civil society groups are worried that crucial suggestions will fall on deaf ears.

The bill, passed by the National Assembly on 26 March 2024, is aimed at countering the erosion of the country’s State Security Agency (SSA) by overhauling it.

Despite several revisions to the controversial GILAB, it “still fails to address its stated aim: to rectify the legal conditions that enabled deeply rooted malfeasance within the SSA and contributed significantly to intelligence services interfering in politics and enabling state capture,” according to the Campaign for Free Expression (CFE) and Intelwatch (IW).

While the third iteration of the bill is said to have improved from the first two versions, numerous pressing issues remain.

“Despite important gains, the new General Intelligence Laws Amendment Bill fails to safeguard against a second state capture,” said the groups.

These identified issues in the GILAB include:

• Security vetting;
• Mass interception of communications;
• A failure to address theft from and mismanagement of secret slush funds;
• The Office of the Inspector-General of Intelligence;
• Broad definitions.

Security vetting

Starting positively, “the omission of the draconian vetting provision is a victory for civil society,” said the CFE and IW.

However, the bill still allows for the vetting of persons who have access to “critical infrastructure.”

“This means intelligence services could legally target SABC journalists for vetting [which] threatens journalistic independence and source confidentiality,” said the groups.

To rectify this, CFE and IW suggest that the bill should make it explicit that SABC journalists must be exempt from the vetting provisions.

Mass interception of communications

The new version of the GILAB now requires intelligence services to obtain approval from a judge before conducting mass interception.

However, the judge must be appointed by the President in consultation with the Chief Justice, which “only adequately promotes judicial independence if it means that the Chief Justice must concur with the President in order for a judge to be appointed,” said the Campaign for Free Expression and Intelwatch

Additionally, GILAB now includes more stringent controls over data collected, which ultimately recognises the safeguards of the Protection of Personal Information Act.

But, “the details of how mass interception will be conducted and how these processes will safeguard against abuses will only be established through additional regulations,” said the groups. “In this instance, we call on authorities to ensure that such regulations are gazetted in draft form and released for public comment,” as well as the final regulations, they added.

Failure to address theft from and mismanagement of secret slush funds

“GILAB still fails to give sufficient powers to the Auditor-General (AG), the Inspector-General of Intelligence (IGI), and Parliament’s Joint Standing Committee on Intelligence to oversee the secret expenditures from the services’ so-called slush fund,” said the groups.

“It is thus likely, if not inevitable, that the intelligence services will continue to receive qualified audits from the AG, with no real accountability to the public.”

The Office of the Inspector-General of Intelligence

The IGI possesses the ability to employ staff and shape the organisational framework of their office, however, they lack the authority to enforce legally binding recommendations.

Consequently, the IGI’s probes into misconduct within the services may not lead to significant repercussions for the implicated service members, argues the groups.

“We are also deeply disappointed by the fact that the much needed position of a deputy IGI was not provided for in GILAB [which] means that, should the IGI’s term come to an end, or should they vacate their office for any other reason, there will be a power vacuum (as was the case during the state capture era),” said CFE and IW.

Broad definitions

A major source of contention from experts had been the definitions that were provided in the bill, warning that their broad nature leaves the door open for abuse.

“While this Bill presented a golden opportunity for lawmakers to narrow down broad definitions, in particular the definitions of ‘national security’ and ‘national security threat’, these core concepts remain vague and open to abusive interpretations by the intelligence services,” said the group.

However, some of these concerns raised in the public participation process were taken onboard.

The groups said it is “commendable that the particularly ill-defined term ‘potential opportunity’, which was contained in older versions of the Bill, has been omitted from the version approved by the NA.”

Where improvements have been noted by CFE and IW

The Campaign for Free Expression and Intelwatch said that the current iteration of GILAB does succeed in improving on current legislation in some areas.

This includes having the State Security Agency split into separate departments as “this is a crucial reversal of the 2009 Presidential Proclamation that consolidated the domestic and foreign intelligence branches into a single agency under a super-directorship.”

“The Bill now also allows for greater – although not sufficient – independence of the National Intelligence Coordination Committee (NICOC) [which] plays a crucial role in the services’ effective functioning by ensuring that intelligence departments adhere to prescripts on intelligence coordination,” the groups said.

Government’s response

Kenneth Mmoiemang, the Chairperson of the Ad Hoc committee on the GILAB in the National Council of Provinces (NCOP), said that the initial bill submitted to Parliament has undergone “significant changes.”

According to Mmoiemang, the changes made aim to address several concerns, including refining vague definitions, eliminating the requirement for vetting civic or faith-based organisations, removing the intelligence services’ authority to detain individuals, and implement measures to prevent the potential abuse of security vetting within national security institutions.

Additionally, he said that the bill now incorporate safeguards, such as a two-step authorisation process which involves both an internal intelligence service authorisation and an independent judicial review.

GILAB is now before the Ad Hoc Committee on GILAB in the National Council of Provinces (NCOP), with public participation processes reopening from 12 April.

It is important to note though that the GILAB is a section 75 bill (an ‘ordinary bill not affecting the provinces’), meaning that the NCOP’s concurrence is not required for the Bill to be passed on to the President to sign into law

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