Op-ed | Despite important gains, the new General Intelligence Laws Amendment Bill fails to safeguard against a second state capture

This piece was first published by Daily Maverick.

By Heidi Swart and Anton Harber

The new intelligence Bill, passed by the National Assembly last week, has improved on the first two versions, but still fails to address its stated aim:  to rectify the legal conditions that enabled deeply-rooted malfeasance within the State Security Agency (SSA) and contributed significantly to state capture.

Major shortcomings remain in the General Intelligence Laws Amendment Bill (GILAB) despite multiple submissions from civil society carefully detailing how GILAB could be improved to prevent the intelligence services from again interfering in politics and enabling state capture.

Multiple issues with the initial drafts of the Bill included:

• Draconian provisions that would have allowed security vetting of non-governmental organisations (including non-profits and churches) and journalists at the SABC;
• No meaningful oversight of the state’s mass communications interception facility, the National Communications Centre (NCC);
• A failure to provide the Auditor-General (AG), the Inspector-General of Intelligence (IGI), and  Parliament’s Joint Standing Committee on Intelligence (JSCI) with the necessary powers to prevent theft from the secret services account (a.k.a. the “slush fund”);
• A failure to provide the Office of the Inspector General of Intelligence, the watchdog organisation tasked with holding the services accountable to the public, with sufficient independence; and
• A broadening of definitions that would have allowed the intelligence services to operate far beyond their legitimate scope, in particular the definitions of domestic intelligence, foreign intelligence, intelligence gathering, national security, national security intelligence and threats to national security.

While GILAB no longer contains a broad provision that would have allowed intelligence services unfettered powers to vet any person or organisation of their choosing, the Bill as adopted by the NA still suffers from most of the above shortcomings in several ways.

Security vetting

The omission of the draconian vetting provision is a victory for  civil society. However,  the Bill still allows for the vetting of persons who have access to critical infrastructure. Although this is understandable,  it would also mean that the services could legally target SABC journalists for vetting under the guise of establishing their trustworthiness.  This potentiality  threatens journalistic independence and source confidentiality. The Bill should have explicitly exempted SABC journalists from the vetting provisions.

Mass interception of communications

GILAB improves upon its previous versions  with regard to the regulation of mass interception. The new version includes more stringent controls over the management, use, and protections of data collected by the NCC, and clearly recognises the legitimacy of protections for individuals provided for in the Protection of Personal Information Act.

In addition, intelligence services must now seek approval from a judge to conduct mass interception, and that judge must be appointed by the President in consultation with the Chief Justice. (This provision, however, 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.)

A third important improvement is that GILAB now calls for the NCC judge to take into account international and domestic legislation while considering mass interception applications.

Despite improvements, the finer details of how the services will conduct mass interception and how these processes will safeguard against abuses will only be established once additional regulations are formulated. In this instance, authorities should ensure that such regulations are gazetted and released for public comment.

A failure to address theft from and mismanagement of secret slush funds

GILAB still fails to give sufficient powers to the AG, the IGI and the JSCI to oversee the secret expenditures from the services’ so-called slush fund. It is highly 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

While the IGI has been given greater autonomy in making staff appointments and determining the organisational structure of their office, they still do not have the power to make legally binding recommendations. This means that  the IGI’s investigations into malfeasance within the services are unlikely to have significant consequences for members of the services. Thus, members of the services can continue to operate outside of the law.

Also deeply disappointing, is the fact that the much needed position of a deputy IGI was not provided for in GILAB. This 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 in the past, the Office of the IGI runs the risk of remaining rudderless and unable to carry out its functions while a new IGI is yet to be appointed.

Broad definitions

While this Bill presented a golden opportunity for lawmakers to narrow down broad definitions, core concepts such as “national security” and “national security threat” remain vague and open to abusive interpretations by the intelligence services. It is, however, 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.

Locating intelligence services within the Presidency

In an attempt to restore the intelligence services to their former glory following the state capture years, the State Security Agency was absorbed by the Presidency. GILAB, however, does not provide for a definite limitation on how long the services can remain within the Presidency. This results in the very real danger of creating a super-presidency in which the services remain under the president’s thumb and becomes, once again, a mechanism for retaining political power and plundering state coffers.

Despite shortcomings, GILAB does succeed in improving on current legislation in select areas.

The State Security Agency will be split into separate domestic and foreign departments. This is a crucial reversal of the  2009 Presidential Proclamation that consolidated the two branches into a single agency under a super-directorship. The 2018 High Level Review Panel had found this amalgamation led to the “serious disruption of the functions, efficiency and operations” of the intelligence services, and an “excessive concentration of power”. As a result, the HLRP recommended that the SSA  revert to its pre-2009 organisational structure.

The Bill now also allows for greater – although not sufficient – independence of the National Intelligence Coordination Committee (NICOC). NICOC plays a crucial role in the services’ effective functioning by ensuring that intelligence departments adhere to prescripts on intelligence coordination.  NICOC will now have greater autonomy in appointing staff members and determining its organisational structures, and its budget will be ring-fenced by Parliament.

Despite such gains, the majority of our primary concerns remain unaddressed. GILAB lacks the safeguards required to ensure that South African intelligence services adhere to the White Paper of Intelligence, the findings of the 2018 High Level Review Panel’s investigations into the State Security Agency, and the Zondo Commission findings on malfeasance within the SSA.

Heidi Swart is the research and journalism coordinator for Intelwatch, a non-profit organisation based in South Africa and dedicated to strengthening public oversight of state and private intelligence actors in Africa and around the world

Anton Harber is the Executive Director of the Campaign for Free Expression, an independent, non-partisan, non-profit organisation which defends and enables freedom of expression for ALL in southern Africa