Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
8 September 2023

New intelligence bill is anti-democratic, and a unique mix of malice and stupidity

President Cyril Ramaphosa and his Cabinet recently approved draft legislation that will radically expand the definition of “national security” and would open the door for the intelligence service to spy on individuals and organisations in South Africa who are involved in lawful political activity, advocacy, protest or dissent. The draft bill – the General Intelligence Laws Amendment Bill of 2023 – makes for disturbing, even shocking, reading.

It also will require designated persons seeking to establish and operate NGOs or religious institutions (and perhaps churches) to undergo security vetting, and would grant wide discretionary powers to the relevant minister to control the intelligence service (which would be renamed the South African Intelligence Agency).

The draft bill – the General Intelligence Laws Amendment Bill of 2023 – makes for disturbing, even shocking, reading. Many of the proposed amendments are vague, even incomprehensible, thus leaving pivotal questions (such as the criteria to decide which NGO and religious leaders would require security clearance) within the discretion of the minister.

The bill could easily have been written by people who wish to turn South Africa into a national security state, one in which the intelligence service could be put to use to keep the governing party in power.

I know this might sound a bit over the top, so let me explain why I believe the bill is bad news.

Radical change

The bill proposes various amendments to the National Strategic Intelligence Act of 1994, the Intelligence Services Act of 2002 and the Intelligence Services Oversight Act of 1994, ostensibly to give effect to the recommendations of the High Level Review Panel Report on the State Security Agency (which was headed by Sydney Mufamadi).

The panel found, among other things, that the intelligence services “have gone ‘over the top’ in terms of the entities whose members it believes should be vetted”, and that the legislation grants too much discretionary power to the responsible Cabinet minister. The panel thus recommended that vetting be curtailed and that the powers of the minister be reviewed with a view to prevent direct political meddling in the day-to-day affairs of the intelligence services.

Perhaps not surprisingly, the bill seeks to do the opposite. If 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.

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”.

This becomes clear when one compares the proposed change to the definition of “national security” contained in the bill with the current definition in section 1 of the National Strategic Intelligence Act.

Currently, the National Strategic Intelligence Act defines “national security” as the protection of the people of South Africa and the territorial integrity of the Republic against, among others, violent attacks, terrorism, sabotage and serious violence directed at overthrowing the constitutional order.

The current definition explicitly excludes lawful political activity, advocacy, protest or dissent from activities that could ever threaten national security.

The bill now seeks to turn all this on its head, proposing a new definition for “national security” that is as vague as it is confusing. The bill states:

“National security means the measures, activities and the capabilities of the State to pursue, advance [sic] any opportunity or potential opportunity and the security of the Republic and its people including national interests and national values as contemplated in section 198 of the Constitution.”

To the extent that the definition is comprehensible at all, it vastly expands the concept of national security by jettisoning the principle that “national security” essentially deals with threats to the constitutional order. In its place, we get a vague yet all-encompassing definition that would potentially turn almost any matter that could impact on the ability of the state (the drafters probably conflated the “state” with the “government”) to advance “any opportunity or potential opportunity” to pursue, among others, “national values” into a national security matter.

It makes things worse that the definition links these “opportunities” to the “national interest” and “national values”, notoriously vague concepts often invoked by semi-authoritarian governments to justify anti-democratic measures targeting critics and political opponents.

The definition suggests that these concepts are embodied in section 198 of the Constitution. This is not the case. While section 198 refers to equality, peace and harmony, and the ability to seek a better life, it tells us nothing about what these “national values” at the heart of “national security” might be.

Ideological shift

It is also telling that the definition references section 198 instead of section 1 of the Constitution (section 1 lists the values on which the constitutional state is founded), as this underlines the profound ideological shift signalled by the tabling of this bill.

Previously, the ANC government’s formal position was that national security was a matter of protecting the constitutional order. The bill views it as a matter of advancing supposed shared values and interests and going after those who make this difficult.

This shift, to say the least, is alarming. In a constitutional democracy – unlike in a national security state – national security should not have anything to do with lawful political activity, advocacy, protest or dissent, regardless of whether such activities challenge or seek to undermine supposed shared values or national interests.

The proposed change in the definition of national security should be read in conjunction with other proposed amendments that would vastly expand the scope of activities on which intelligence could be gathered domestically.

It would empower the intelligence services to “gather, correlate, evaluate, and analyse” domestic intelligence on “any internal threat or opportunity or potential opportunity or threat or potential threat to national security” in order, among other things, to “identify and impede any threat or potential threat to the security of the Republic and its people”, and to “supply intelligence relating to any such threat to the Department of Home Affairs for the purposes of fulfilment of any function

The bill also vastly expands the scope of activities that might constitute “threats to national security”, proposing that any “action or omission” which may “potentially cause damage, harm or loss to the national security” would constitute such a threat to national security.

The bill then lists activities that would constitute such a threat, but bizarrely this list includes affirmative action measures as well as measures “that seek to advance and promote peace and harmony and freedom” (along with terrorism, espionage, pandemics and corruption).

I assume (but who can tell?) the drafters meant to suggest that opposition to, or criticism of, BEE and affirmative action measures or other acts of dissent that may stir up dissatisfaction and may thus lead to disharmony constitute threats to national security.

The bill also proposes amendments that would vastly expand the scope of security vetting. It would do so by amending section 2A(1) of the National Strategic Intelligence Act to change a discretionary power of the Intelligence Agency (may conduct vetting) into a mandatory obligation (must conduct vetting), and by potentially expanding the categories of people who would be required to undergo such vetting to all persons who are employed by or render a particular service to an organ of state; and any person who “seeks to establish and operate a Non-Governmental Organisation or Religious institution”. (Elsewhere the drafters include “Churches” in this list – yet another example of drafting incompetence.)

The bill expands the scope of security vetting, defining it as a vetting investigation aimed at determining “the security competence of a person and if such person is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise”.

In the absence of prescribed criteria to assess whether a person is vulnerable to “undue influence or manipulation”, a person could be denied such clearance for almost any reason. It is not far-fetched to imagine somebody heading an NGO being denied such clearance because their NGO receives money from, say, George Soros or the Bill and Melinda Gates Foundation, or because that person once chatted to the American ambassador.

The bill makes it clear that the minister has the power to decide which individuals falling within the listed categories would be required to obtain security clearance. This would presumably be done in terms of section 6(1)(b) of the National Strategic Intelligence Act which already empowers the minister to make regulations regarding the carrying out of vetting investigations.

But the bill is silent on the consequences of being denied security clearance, which suggests that the regulations issued by the minister will be used to impose restrictions on those who operate NGOs or religious institutions who fail to get security clearance. (The bill also expands the powers of the minister to issue regulations on a variety of other topics.)

It must be clear from the above, that some of the provisions in the bill make little sense (what the hell does “potential opportunity to national security” mean?), but there is no doubt that one of the main aims of the bill is 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. (Of course, as the High Level Panel Report makes clear, these restrictions have not stopped members of the Intelligence Service from unlawfully spying on people and organisations in South Africa, or from using unlawful methods to do so.)

When I first heard that the bill would require individuals heading NGOs to obtain security clearance, I assumed that this was a case of Hanlon’s Razor, the rule of thumb that one should never attribute to malice that which is adequately explained by stupidity.

After studying the bill, I strongly suspect that the document is the product of a happy marriage between the two.

2015 Constitutionally Speaking | website created by Idea in a Forest